April 21, 2023

Employers sponsoring foreign national workers should know about the recent “retrogressed” cut-off dates for specific visa applications. This change is due to the increasing demand for foreign national workers. Interested parties can find these dates in the Department of State’s (DOS) monthly Visa Bulletin. This bulletin informs employers and foreign nationals when they may file an immigrant visa application or when to expect adjudication for pending applications. For example, the Department of State released the May Visa Bulletin, which contained retrogression in two employment-based categories.

What is the Issue?

Foreign national workers must file an Immigrant Petition for Alien Worker (Form I-140) to complete the visa process for the first three employment-based categories. Typically, employers will file the petition for workers they wish to sponsor. However, anyone capable of demonstrating extraordinary ability with the first and second preferences can self-petition.

Employers will receive the I-797 Notice of Action with a priority date after an approved I-140. They may use this date to determine the foreign national worker’s place in the visa queue. 

Unfortunately, available visas are limited in each preference category. As such, the Department of State provides cut-off dates or retrogresses the date to avoid exceeding the statutory limit. However, workers with priority dates before the Visa Bulletin’s cut-off date can expect an available visa.

Retrogression in the EB-2 Preference Category

The May 2023 Visa Bulletin shows significant retrogression in the second employment-based preference category. As such, foreign nationals from all countries, excluding India and China, will face four and a half months of retrogression. This decision goes to February 15, 2022. Continued high demand may lead to further retrogression by the Department of State.

Retrogression in the EB-3 Preference Category

Earlier this year, the Department of State warned about the increased demand for the third preference category. Continued demand may necessitate cut-off dates or retrogression. Notably, in April 2023, only Chinese foreign nationals faced retrogression. However, for May 2023, the State Department set a worldwide final action cut-off date for June 1, 2022. This cut-off excludes China and India.

What Does This Mean for Employers?

For employers, it is crucial to keep abreast of the Visa Bulletin each month. This vigilance keeps employers aware of changes and patterns in processing times. In addition, it can help employers plan for expected processing times and prepare for the onboarding process. 

One of the most crucial steps in this process is completing Form I-9, which can prove difficult when hiring foreign national workers. One of the best ways to ensure a quick and difficulty-free experience is to incorporate an electronic I-9 management system. This system can provide step-by-step guidance, ensuring uniform compliance with every form.

When it comes to your employees, automation makes eligibility verification quick and simple. Ensure compliance today with I-9 Compliance.

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