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Insights

Immigration Insider | April 2023

April 27, 2023

Priority Date Retrogression

With the May 2023 Visa Bulletin, the U.S. Department of State announced that priority dates will retrogress for the employment-based 2nd and 3rd preference categories for all applicants other than those born in India and China (these categories are already significantly backlogged). While the Department of State had warned that retrogression would occur, the significant backwards movement was unexpected, particularly this early in the U.S. government’s fiscal year (October through September).

By federal law, the number of green cards issued each year is numerically limited.  There are far more green card applicants each year than there are green cards available, which results in an often significant backlog. Individuals must then wait, often many years, before they can complete the process to obtain lawful permanent residence. A new allotment of green cards is made available every October 1, the start of the U.S. government’s fiscal year. While priority dates may move forward between now and then (they could also retrogress further or remain the same), EB2 and EB3 applicants should be prepared to have to wait until October 1 to move forward with the final stages of green card processing.

CBP Simplified Arrival

U.S. Customs and Border Protection has implemented its “Simplified Arrival” program at all 238 arriving airports, at 34 seaports, and at all southern pedestrian and most northern secondary land ports. The goal of this program is to streamline and digitize the legal entry process. As part of that program, CBP also initiated a pilot initiative called “Stampless Entry” to eliminate ink stamps in passports at entry. CBP has indicated that stampless entry will be expanded.

As a reminder, foreign nationals should check their online I-94s for correctness after each entry at www.cbp.gov/i94. Issues can often be corrected, but it is much easier to do so as early as possible. A correct and valid I-94 is critical, as it is the document that allows a foreign national to be present in the United States, and to work, if the visa category permits.

Increase in DOL Processing Times

We are continuing to see long wait times for PERM-related applications filed with the Department of Labor. Processing times for prevailing wage requests are currently 6-7 months.  Processing times for adjudication of PERM applications are 9-10 months. Employers should plan accordingly and initiate the PERM process as early as possible to ensure sufficient time so that employees do not have gaps in their authorization to work and/or remain in the United States.