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Employment Based Preference Categories and Priority Date Retrogression

The Immigration and Nationality Act sets limits on how many green cards or immigrant visas may be issued each Fiscal Year (October 1st through September 30th ) in all visa categories. Every year, the government (U.S. Citizenship and Immigration Services, “USCIS,” and the Department of State, “DOS”) specifically issues a certain number of employment based “green cards.” In the employment- based area, nationals of each country may obtain immigrant visas in a preference category, such as EB-1, EB-2, and EB-3. EB-1 means the Employment-Based First Preference category and includes the following: (1) Persons with extraordinary ability in the sciences, arts, education and athletics; (2) Outstanding professors and researchers; and (3) Multi-national executives and managers. EB-2 refers to the Employment-Based Second Preference category, including the following: (1) Members of the professions holding advanced degrees (Master’s or Ph.D.); and (2) Persons of exceptional ability in the sciences, art or business. The Employment- Based Third Preference category includes: (1) Professionals and skilled workers (Bachelor’s degree or two years of training). The position must require a minimum of a Bachelor’s degree or two years of training.

The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing. This date is called a “Priority Date,” and can be the date a Labor Certification is filed by an employer with the Department of Labor (“DOL”), or if the foreign national is exempt from the Labor Certification process, it is the date of filing the I- 140 Immigrant Petition with USCIS.

Since 2005, there has been a significant increase in the backlog of employment based green cards as the demand began to exceed the annual supply of immigrant visas due to backlog reduction programs at both USCIS and the DOL. Reducing backlogs of Labor Certification applications by the DOL and I-140 Immigrant Petitions by USCIS created a significantly higher demand for immigrant visas than previously experienced. Consequently, the DOS established priority date cut offs in many employment based immigrant visa categories. The DOS lists the priority dates monthly in the “Visa Bulletin.” This Bulletin is accessible at . From the home page, click on the button, “Visas,” in the middle of the page. On the next page, click on “Visa Bulletin,” on the left hand side to access the current or archived Visa Bulletins. The link to the DOS’ Visa Bulletin can also be found on this web site under “Resources.”

In order to apply for an Adjustment of Status application, foreign nationals must wait for their priority date to become current. If there is a “C” in an employment- based category in the Visa Bulletin, then there is no quota backlog and the foreign national may proceed with an Adjustment of Status application or immigrant visa application at a U.S. Embassy or Consulate abroad. If you need assistance deciphering the employment preference categories as listed in the Visa Bulletin, please contact Jacqueline Lentini,, or 630-262-1435.