Green Card Update: Why the Likelihood of Retrogression Is Low for EB Visas

The duress and stress under which our healthcare system is operating is truly unprecedented.  In normal times, we face consistent nursing shortages across the United States.  According to the Bureau of Labor Statistics Employment Projections 2019-2029, the RN workforce is expected to grow from 3 million in 2019 to 3.3 million in 2029, an increase of 221,900 or 7%. The Bureau also projects 175,900 openings for RNs each year through 2029 when nurse retirements and workforce exits are factored into the number of nurses needed in the U.S.

The COVID-19 pandemic with which we have been dealing for nearly the last two years has only exacerbated that nursing shortage in so many ways.  It will be many years before we have a true understanding on the physical and emotional toll it’s taken on those who have worked on the front lines for countless hours and days.  The sacrifice they have made, the exhaustion they have fought through and the trauma they have witnessed should never be underestimated.       

I am a non-apologetic believer that our healthcare system is driven and led by nurses.  The system would not function without their care, compassion, and hands-on delivery of services.  They are the engine that makes the best healthcare system in the world run.  But that engine is suffering and needs support.  The nursing vacancies across our great country are at historical highs. The impact is dramatic and can’t be understated.  Hospitals all over the United States have been unable to operate at capacity, leaving desperately needed ICU beds vacant. When that occurs, there is no choice but to ration care resulting in avoidable deaths.  States are deploying their National Guard to staff depleted hospitals just so basic services can be provided.  For those fortunate enough to get the care they need, the financial costs of that care is skyrocketing. 

As the impact of this pandemic has ebbed and flowed, we cannot be for certain what the future holds.  But if the late summer and early fall are indicators, it is not unreasonable to expect the winter months to be as challenging if not more so.  Unfortunately, health networks and hospitals are making difficult decisions around vaccine mandates.  Many systems that have mandated vaccines, they have seen an even greater exodus of nurses.  If the winter months see an uptick in COVID cases, the results on patients and staff alike could be unfathomable. 

One very important and critical way the United States has attempted to address its consistent shortage of nurses has been with the help of international nurses.  There is never a shortage of well-trained and educated nurses wanting to enter our great country.  These individuals are graduates from colleges and universities recognized on par with those located in the United States.  There is a formal credentialing process to confirm the status of their nursing license.  For decades they have served an essential and vital role in our healthcare delivery. 

Like many agencies, the USCIS, within the Department of Homeland Security, is overwhelmed, underfunded, and historically understaffed to adequately and timely address all immigration petitions.  The views from one Administration to the next can and do have a tremendous impact.  This is not a new phenomenon but a reality that millions have faced while seeking entry into the United States.  There have been a few occasions when draconian measures have been exercised to address backlogs, including the imposition of a retrogression.  Just as a reminder, retrogression occurs when more people apply for a visa in a particular category or country than there are visas available for that month. Historically, retrogression occurs toward the end of the fiscal year as visa issuance approaches the annual category or per-country limitations. Typically, when the new fiscal year begins on October 1, a new supply of visas is made available and usually, but not always, returns the dates to where they were before retrogression. Equally important, retrogressions are short-lived. 

There are some who are of the opinion that this may occur in the near future.  As we study the current circumstances, it is our view any measures taken that restrict or limit immigration applications, are very unlikely to occur especially at this point and time in our history.  This is especially true of those seeking Employment Based Visas. 

As our healthcare system is under attack, it is our view that the current administration’s position will be a commitment to do no harm.  There are no immediate or short-term fixes available to address the current crisis that exists. Limiting, slowing down, or even stopping EB-based petitions would impose significant harm and subsequent damage to a system and its patients.  That would be an unfathomable path for this Administration to take. 

In our view, it is likely this Administration will attempt to adopt and implement policies that are more accommodating as an additional tool to address the immediate crisis.  From a long-term view, it is our opinion, that the current Administration will prioritize necessary funding and staffing to address the backlogs that currently exist and attempt to implement policies going forward to create long-term solutions to avoid or limit such backlogs in the future.

In addition, as budget negotiations are taking place in earnest despite what the media is reporting over failed discussions, it is our belief that positive steps will be taken by Congress.  One area that is gaining momentum, is language aimed at recapturing visas previously authorized but unfortunately unused because of understaffed and inefficient bureaucracies.  There are various reports out there that suggest nearly 1 million visas previously authorized by Congress since the early 1990s have gone unused.  If legislative steps are taken to recapture those visas, it would be one of the most positive pieces of immigration-facing legislation passed in many years.   

But while Congress may be on the verge of passing significant and positive reforms, the day-to-day realities of what we are currently facing remain the same.  As pockets of our healthcare system are on the verge of collapse, our collective focus should be on taking all necessary steps to ensure we are adequately staffed.  To do otherwise will cause great harm for both those entrusted to deliver care and for those needing care. The vicious cycle of staff burnout will continue, careers will be ruined and lives will be lost.  That path is not an option for the United States of America.

For all of these reasons and many more, it is our sincere belief that despite many factors present that in times past resulted in a retrogression, that will not be the case for the foreseeable future.  Even if it were to occur, the duration would be short-lived as history has shown us.  Nonetheless, if you are concerned that retrogression is likely to occur and that it may last longer than usual, we would encourage prompt petitions be filed for employment-based visas for peace of mind. 

Josh Dhani
Attorney at Law

Arvind Amatorio
Attorney at Law