Applying for a green card under the EB-2 National Interest Waiver (NIW) category is a two-step process. While the first step, the I-140 petition, has become much faster, the second step is now subject to significant delays. This is known as NIW priority date retrogression, and it has become the biggest challenge for applicants.
The Two-Step Process: I-140 Approval vs. Green Card
Understanding the NIW timeline requires separating two distinct milestones:
- The I-140 Petition: This is the first step, where you petition USCIS to classify you as eligible for an NIW green card. With the introduction of premium processing, applicants can now pay for a decision within 45 days.
- The Green Card Application (I-485 or Consular Processing): This is the second step, where you apply for the green card itself.
A common misconception is that an I-140 approval means you can immediately apply for your green card. This is only true if your “priority date” (the date you filed your I-140) is “current” on the Visa Bulletin.
The Impact of NIW Priority Date Retrogression
The number of green cards available each year is limited by law. When the demand for visas in a category (like EB-2) exceeds the supply for a specific country, that category “retrogresses.” This means a waiting line forms, and you cannot file your green card application, even with an approved I-140.
This delay can last for years and has a critical impact on applicants. When a category is retrogressed, you cannot file the I-485 (Adjustment of Status) application. This means you are also ineligible to receive the associated benefits of a pending I-485, such as a “combo card” for work authorization (EAD) and advance parole for travel.
The Critical Need for Maintaining Status During Retrogression
This waiting period makes long-term planning essential. An applicant who is already in the U.S. on a temporary visa (like H-1B or O-1) must ensure they can maintain their non-immigrant status and work authorization for the entire duration of this wait. If your current visa expires while you are waiting for your priority date to become current, you could fall out of status.
Current EB-2 Wait Times for India, China, and Rest of World
As of the time of writing, the EB-2 category, which includes NIWs, is not current for any country. The waiting times are particularly extensive for applicants from India and China, who can face delays stretching for many years. For applicants from all other countries (“Rest of World”), a wait of around a year or more is now common.
How to Navigate This Uncertainty
The reality of NIW priority date retrogression has changed the strategic calculus for many applicants. An approved I-140 is a crucial victory, but it is no longer the final step. It is now the key that gets you a place in line.
Given these delays, planning is more important than ever. If you are considering an NIW, it is vital to have a plan for maintaining a valid U.S. status during the long wait.
For those seeking further guidance on how priority date retrogression might affect their green card application, we offer free resources. We invite you to sign up for our free webinars where you can ask questions, download our free NIW guide, or schedule a consultation with our expert lawyers to get tailored advice for your immigration journey.
