Priority date retrogression -- consequences and concerns (Updated 10 April 2012)

The current prediction that the priority dates for employment based green card applications are likely to retrogress again has brought a lot of speculation and questions from our clients and our community. Let me clarify some of the questions and concerns.

Q. What happens if my priority date ('PD') retrogresses while my I-485 is still pending?
A. There are two possibilities. First, the case is not yet ripe for adjudication (for instance, it has not been assigned to an officer or the security clearances are not yet submitted or obtained), USCIS can shelf the case and not process it any longer untile the PD becomes current again. Second, USCIS can preadjudicate that case. That means the case is adjudicated and then shelved for PD to become current again. I do not believe there exists a mechanism currently to determine what USCIS will do with an individual case.

Q. Can we expedite the adjudication of our pending I-485 (or any application, for that matter)?
A. Not usually. Here is what USCIS says about expediting:
Expedite Criteria
All expedite requests are reviewed on a case-by-case basis, and are granted at the discretion of the Director. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met. The criteria are as follows:

  •   Severe financial loss to company or individual
  •   Extreme emergent situation
  •   Humanitarian situation
  •   Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
  •   Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
  •   USCIS error
  •   Compelling interest of USCIS

Note: Discretionary expedite requests for petitions and applications that have Premium Processing Service available will not be considered for expedite processing. The only exception is when the petitioner is a not-for-profit organization designated by the Internal Revenue Service. For information regarding premium processing, please refer to the premium processing webpage.
If you have already filed your application or petition:
You can make an expedite request by contacting the National Customer Service Center (NCSC) at 1-800-375-5283. The NCSC will take a 'service request' and forward your expedite request to the office with jurisdiction over the application or petition. You also have the options of 1). visiting your local office by scheduling an InfoPass appointment or 2). writing a letter to the local office or service center.

New FAQ 10 April 2012

Q. As i have seen in recent Visa Bulletin that the dates have been retrogressed to 15th August 2007..Just want to know do you have any information about available Visa numbers for this year..are they going to process applications earlier to that date?I got my GC but My wife application is still pending for more than 3 months and PD is june 2007
A. Since her PD is current, we have no issues. She gets her process to continue.

Had her PD not been current, she would have had to wait till the PD became current again. In such cases we would then have to monitor the PD movement in September, when DOS announces the dates for October, the beginning of the next fiscal year for the US government.

The Visa bulleting for May 2012 is out. For my category- EB2 - the cut off date is now retrogressed to 15th August 2007. My priority date is Jan 2008.
My questions are these:
Q. I did my finger printing on 23rd March 2012. One of my friends got the Green card within 3 weeks of date of finger printing; Of course, i know it is any body's guess, if I will get my GC within 3 weeks (or even 4 weeks) of date of finger printing, which in my case was, 23rd March 2012. Can you comment on that?
A. It is highly unlikely that we will get an approval when the FP have not yet cleared security.

Q. I think the new cut off date is from 1st May 2012; so, can I expect that till 30th april 2012, I stand a chance to get the GC? or, it is not so?
A. State department had announced that effective March 23, 2012, no further EB-2 visas will be authorized for China-mainland born and India applicants with priority dates of August 15, 2007, or later. So, there is little possibility of us getting an approval in this fiscal year. In the new fiscal year that begins on 1 October 2012, we will see how quickly the dates move again.

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