Green cards are notoriously difficult to obtain, and visa backlogs are a growing problem for employers and prospective workers.
Each year, the U.S. government allocates a limited number of green cards to immigrants looking to work or live in the country. Green cards also have a per-country cap, which means no more than a certain number of individuals from a particular country can get a green card each year. Green cards not assigned go unused instead of reallocated or relocated, so the backlogs continue to grow.
In this episode of Immigration & Mobility Decoded, we sat down with Anne Walsh and Michael Hammond, partners at Corporate Immigration Partners (CIP PC) to better understand the visa backlogs and the corresponding challenges they pose and potential legislative solutions.
Below is a lightly edited transcript of the original episode.
Immigration & Mobility Decoded:
We are now halfway through June. Can you tell us what is the latest when it comes to business immigration in this mid-year mark?
Anne Walsh:
The two main questions people ask are “How do I get to the U.S.?” and “How do I stay in the U.S.?”. In 2024, we saw normalization in the selection rate for both H-1B and H-2B cap-subject visas. For the first time, USCIS used a beneficiary-centric selection method.
Additionally, more policy changes have occurred this year that have made it easier for individuals to stay in the U.S. For instance, Schedule A (Group II) is not subject to the PERM process, which simplifies and expedites the hiring process, and that same category has expanded to make more people eligible for designation.
Another potential Schedule A update is on the horizon, as the Department of Labor recently issued a Schedule A RFI to exempt STEM workers from the PERM process as well.
Immigration & Mobility Decoded:
Mike, I think it would be helpful if we started with some important terms and concepts about retrogression.
Download our ABC’s of Immigration Guide for a complete understanding of the top U.S. work visas.
Michael Hammond:
The concept of retrogression is simple, which is that there is more demand than supply in employment-based visa categories. People get a priority date, which is essentially a spot in line. For people filing through a program that uses PERM, the priority date is the date the certification or PERM was filed. For programs that don’t use PERM, such as Schedule A, the priority date is the date that the I-140 form is filed.
The Department of State’s monthly visa bulletin usually comes out in the middle of the month before. The visa bulletin uses two charts … the final action date chart and the date for filing chart. The State Department uses the final action date chart to issue green cards. Visa bulletins operate on a fiscal year schedule. October 1 marks the start of the government’s fiscal year. Each year, employment-based categories have a minimum of 140,000 green cards. However, all green cards issued may not be used in a given fiscal year. The ones that are left over go unused instead of being reallocated. Green cards may be issued to dependents and spouses in addition to workers.
Countries are subject to a per-country limit, and there’s also an additional limit of 10,000 for “other workers.”
Immigration & Mobility Decoded:
Can you explain the green card application process?
Walsh:
The green card application process can take place either inside or outside the U.S. Employment-based applications need an I-140, which is an immigrant petition for alien workers. The I-140 gives applicants a priority date. That date indicates when they can proceed to the final step of the application process. In the U.S., the last step is Adjustment of Status, which means filing the I-485 application for a green card. Outside the U.S., applications get processed through an embassy or consulate. Individuals receive a green card in their passport to travel to the U.S., and they receive a mailed passport upon arrival.
Hammond:
Visa retrogression adds a wait and delays entry into the U.S. For instance, individuals outside the U.S. may have their I-140 approved, but they must wait to enter the U.S. The effect can be significant, especially for families with children who will age out and may not be able to immigrate to the U.S. with their families.
Those already in the U.S. usually have a legal working status, but a delay in obtaining a green card may delay an I-45 filing, which in turn impacts travel capabilities, spousal employment, job changes and more. Some people, such as students, may not initially have work status and then must decide about going back to school.
Immigration & Mobility Decoded:
What are the impacts of visa retrogression on certain industries?
Hammond:
Visa retrogression has unique impacts on certain industries and skilled vs. unskilled workers. A variety of occupations are included in the “other worker” category, which has 10,000 visas allotted per year. Due to the limited number of green cards available, those workers experience longer delays.
Additionally, occupations that don’t have a good visa for entering the U.S. see more impacts from retrogression. Software engineers, for example, can enter the U.S. with several visas, such as an H-1, O or L. They can enter under several visa categories, but they may face a long wait period for a green card after arriving. Other occupations, such as registered nurses, don’t have easy visas or various visa options. They must wait outside the U.S. until they receive a visa, which extends their employment start date.
Immigration & Mobility Decoded:
What are your words of wisdom for employers, and how can they help their employees?
Hammond:
Employers view retrogression differently than employees. Employers will look at how long retrogression is going to take and wonder if they will still need that position several years later.
Employees, on the other hand, must wonder if their employer will wait years for a green card. For some occupations, that’s too long. Individuals already in the U.S. don’t see impacts quite as significant because they can work while they wait for a green card.
Immigration & Mobility Decoded:
Is there a time of year when retrogression happens more?
Walsh:
Yes. Retrogression typically gets worse towards the latter part of the (fiscal) year when agencies are trying to figure out how many green cards they have left. And no country can have more than a 7% allotment. Retrogression typically progresses as the year goes on, but October is generally the “friendliest” month because new green cards are available for the year. October usually has the most advantageous dates.
Immigration & Mobility Decoded:
Will visa retrogression end, if ever?
Hammond:
Retrogression will only end in one of two circumstances. Either there is a legislative fix that increases the number of available green cards per year so that the supply is closer to meeting demand, or we exempt certain categories and occupations from the total count, which essentially increases availability.
Policies have been proposed over the years that would change existing policies and reduce retrogression. However, if retrogression ended, demand would go down, such as with a depression or recession. The COVID-19 pandemic also reduced backlogs.
Walsh:
As Mike said, it’s unrealistic to have a perfect bill passed anytime soon, but we can try to take a bite, right? Some bills have proposed interesting ideas like eliminating per-country caps and maximum allotments. Other recommendations include removing STEM PhD grads from green card lines, which retains talent and shortens lines.
There are a lot of interesting ideas with bills that have been proposed, but if we can make progress one bill at a time, that’s something. Otherwise, we may not see the sweeping immigration reform we’d like to see.
Immigration & Mobility Decoded:
Anne, do you think there are things that the executive branch could do, such as USCIS or DOL?
Walsh:
Yes. The executive branch implements the laws that Congress writes, so they have some capability to interpret what they have the power to do.
Immigration & Mobility Decoded:
You mentioned Schedule A before. Could the upcoming changes impact retrogression?
Hammond:
The expansion of Schedule A into more STEM occupations will probably affect case processing, but it won’t impact retrogression numbers.
Immigration & Mobility:
Do either of you have any additional thoughts about how employers and their employees can navigate retrogression, keeping best practices and similar things in mind?
Walsh:
Absolutely. It’s important to be educated on the categories, because you may be able to find a better category with a more advantageous position in line and one that works with both the employer’s and the employee’s goals.
Hammond:
I would add that people who are overseas should take care of the things they can take care of before coming to the U.S., such as licensing and language proficiency exams. Also, the waiting lines can seem intimidating, but it’s best to err on the positive side and assume those lines will move forward.
Employers should consider how long they want to wait and have an employee wait, too. Employers should file cases as soon as possible.
Immigration & Mobility Decoded:
Great, thank you both for your time today!
Be sure to follow Envoy Global, Michael Hammond and Anne Walsh on LinkedIn for more immigration insights and analysis.
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Content in this publication is for informational purposes only and not intended as legal advice, nor should it be relied on as such. For additional information on the issues discussed, consult an attorney at Corporate Immigration Partners, P.C., or another qualified professional of your choosing. On non-U.S. immigration issues, consult your Envoy representative, or another qualified representative of your choosing.
