FAQ Articles

 QUOTA RETROGRESSION AND ADJUSTMENT OF STATUS
IMMIGRATION Q AND A

(Philip Abramowitz is a California State Bar Certified Immigration Law Specialist, a licensed professor of law, and a member of the law firm ASK Law Group, Abramowitz, Stefanski,  Korenberg )

Question: I entered the U.S. as a tourist many years ago and changed status to H-1B.  Thereafter,  my employer filed a labor certification on my behalf in 2002 and it was approved early last year.  I filed for adjustment of status combined processing with the form I-140 petition from my employer last year.  I received my work permit but I did not yet receive my greencard.  My friends got their greencards in only a year. Why am I waiting so long?  What can I do to expedite my case?

Answer: One of the factors that affects almost every area of immigration law is the quota system.  The issuance of nearly all immigrant visas for both family based and employment based petitions, is controlled by a quota system administered by the U.S. Department of State.  Since there is only a limited number of immigrant visas available every year, when more persons apply for immigration to the U.S. than there are available visas, a waiting line develops.  The issuance of visas from this queue is based upon a first-come, first-served rule.  Persons with the earliest date of filing, receive priority over persons who filed later.  Every month the Department of State publishes the priority dates that are now being processed for permanent residence.   This so called, Visa Bulletin, is available from the Department of State or the USCIS and is also available online at www.visas.state.gov.  The succeeding month’s visa bulletin is available by the 15th day of the present month so persons can get a preview of what visa numbers will be available and can plan accordingly.
               Persons who are in the U.S. and are otherwise eligible for adjustment of status can only file for permanent residence if their priority date appears as available on the current visa bulletin. Neither permanent residence nor work authorization can be issued by the USCIS until the applicant’s priority date becomes available on the visa bulletin.  Therefore, even if a person obtains an approved labor certification quickly under the new PERM rules, that person cannot apply for permanent residence or a work permit unless the priority date of the labor certification is shown as available on the current monthly visa bulletin.
              Due to a large demand for immigration to this country, and a limited supply of immigrant visas, there is a substantial delay in immigrating under most categories. Thankfully, there is a bill in Congress that is presently pending to increase the quotas to make immigration somewhat faster.  If this bill becomes law, waiting times to immigrate to this country should decrease.  Note, that the immigration quota applies equally to persons waiting to adjust status in the U.S. and to persons who are seeking entry from abroad based upon an approved visa petition.  Persons in the U.S. do not receive priority treatment by virtue of their presence in this country.
                 As in your case, a problem arises when the quota closes or retrogresses after filing for adjustment of status.  Once a person files for adjustment of status to permanent residence, if the quota regresses or closes thereafter, the application for adjustment of status remains open but no visa can be issued until the quota reopens.  This occurred last year for those persons who applied for permanent residence through an employment based petition.  Although the quota was open and available for several months at the beginning of the year, it subsequently regressed several years and presently stands ay May 1, 2001.  This means that persons who applied for adjustment of status last year when the quota was open, may have to wait months before obtaining permanent residence if their priority dates are after May 1, 2001.  The USCIS will continue to keep the file open and renew work authorization until the quota becomes available again.  Contacting the USCIS, filing suit or other action will not prod the USCIS to work faster as the visa cannot be issued until the quota reopens.