Latest Grim Visa Bulletin Projections for Employment Based Green Cards Illustrate Need for Comprehensive Immigration Reform There are few things that clearly demonstrate the overarching need for immigration reform than the most recent information provided by the U.S. Department of State (DOS) Visa Bulletin. The Visa Bulletin provides information on the availability of immigrant visa numbers, which dictates when foreign nationals may apply for green cards under various preference categories. The July 2009 installment of the Visa Bulletin shows complete unavailability for the vast majority of employment based cases. Moreover, DOS projections show that demand for higher preference green card categories could reach record levels, which would lead to backlogs in these categories where green card numbers were traditionally available in the past. About the Visa Bulletin The Visa Bulletin establishes cut off dates based on the demand for green cards versus the amount actually available under immigration law to each specific employment based (and family based) category per country for each fiscal year. As it assesses green card demand in relation to availability, the DOS may move these cut off dates forward or back, or not at all. When the DOS believes that all immigrant visa numbers in a particular category will be exhausted (or allocated) by the end of a particular fiscal year (i.e., September 30th), it will indicate an unavailability of numbers (marked as U ) in the Visa Bulletin. The law prevents any single country from overuse of immigrant visa numbers during a particular fiscal year. As a result, foreign nationals born in countries from which there is significant immigration to the U.S. will typically have a separate cut off date (and longer waiting times for an available green card number) in the Visa Bulletin. An individual's priority date or place in line for a visa number under the employmentbased categories is the date on which his or her employer files a labor certification or immigrant visa petition with the government. Individuals assigned priority dates that are earlier than the relevant preference category cut off date noted in the Visa Bulletin are eligible to move to the last step in the employment based green card process either processing of an adjustment of status application with United States Citizenship and Immigration Services (USCIS), or processing of an immigrant visa at a U.S. consulate abroad. When the category is unavailable, individuals cannot file for adjustment of status or receive an immigrant visa.
The July 2009 Visa Bulletin In the July 2009 Visa Bulletin, immigrant visa numbers continue to be unavailable for all third preference (EB 3) employment based cases. Third preference cases comprise the majority of pending employment based green card cases, as they include positions requiring at minimum either a bachelor s degree or two years of work experience. The July Visa Bulletin indicates that the first, second and fourth and fifth preference employment categories remain current for July. However, since demand in the second preference category for individuals from China and India exceeds the per country limitations, these two countries have second preference cut off dates of January 2000. Preference Category Case Types Worldwide China India 1 st (EB1) Special Employees (Extraordinary Current Current Current Ability Aliens, Outstanding Researchers/Professors, Multinational Executives/Managers) 2 nd (EB2) Positions Requiring Advanced Current Jan. 1, Jan. 1, Degrees or Certain Exceptional Ability 2000 2000 Aliens (Including National Interest Waiver Cases) 3 rd (EB3) Professional or Skilled Worker Unavailable Unavailable Unavailable 4 th (EB4) Religious Workers and Other Special Current Current Current Immigrants 5 th (EB5) Immigrant Investors Current Current Current Overall, the July Visa Bulletin continues a substantial decrease in green card availability over the government s 2009 fiscal year. Admittedly, the retrogression, or backward movement of the cut off dates, has been more common for employment based green card numbers in recent years. Yet the complete exhaustion of EB 3 numbers and the sharp decline in India and China s EB 2 numbers are staggering reversals given the slow yet steady improvement in these cut off dates during the present fiscal year.
Announcement on Visa Bulletin Projections for 2009 and Beyond DOS has projected that, as a result of significant filings in the EB 4 and EB 5 categories, there will be fewer numbers to supplement the EB 1 and EB 2 categories. In previous years, thousands of unused EB 4 and EB 5 numbers spilled over into other preference categories. However, greater than anticipated EB 4 and EB 5 usage, as well as greater demand in the EB 1 category itself, will create an even greater dearth of available spill over immigrant visa numbers in the EB 2 category. In addition, the DOS has indicated that the EB 1 category for individuals born in India or China may backlog or retrogress later this summer, and may do so again in the coming fiscal year. Predictably, prognostications for the EB 2 category for India and China are also quite grim in the next month or two, the EB 2 category could become unavailable. In particular, USCIS has indicated that it has about 25,000 EB 2 India cases and "significant numbers" of cases for Chinese nationals that have been reviewed and are simply awaiting visa number availability. This category has a typical fiscal year limit of 2,800, plus any remaining numbers from the EB 1, EB 4 and EB 5 categories. With respect to the EB 3 category, the DOS has stated that the worldwide, China and Mexico quotas for the EB 3 category will become available again with the start of the new fiscal year in October 2009, with a projected cut off date of March 1, 2003 for each. However, the EB 3 India quota may have a November 1, 2001 cut off date. Employment Based Immigration Backlogs and Comprehensive Immigration Reform The federal quotas limiting employment based green card numbers have remained unchanged since 1990, nearly two decades ago. Since that time, the United States has undergone unprecedented expansion, technological development, and cultural diversification, in large part through immigration. During this progress, skilled immigrants have continued one of our country s oldest and proudest traditions the search for better lives for their families, and the desire to contribute to and to participate in our free society. Still, these quotas remain stagnant, potentially stifling the future of our nation s ability in the 21 st century to prosper as an economic competitor in our world, to build a broad based infrastructure in our localities, and to live together as families in our homes. A quarter century prior to 1990, major revisions to the immigration quotas sparked a historic influx of individuals to our nation of immigrants. In 1965, this broad based increase in immigration levels across all preference categories allowed some of the world s most talented individuals to come to our shores and share their knowledge as academics, increase our economic fortunes as innovators and entrepreneurs, build vibrant communities as
leaders and organizers, and inspire with their tales of strife and triumph as refugees. For many ethnicities and nationalities, the post 65 generation was the real beginning of their stories in America. Faced with a major financial downturn and an increasingly competitive global economy, our country cannot choose the path of closed borders and restricted immigration. At this very moment, historically restrictive nations are expanding their immigration policies and attracting valuable immigrants otherwise bound for our shores. Conclusion Absent relief provided by potential legislation, there will be substantial backlogs for nationals of India and China in all categories for many years. Careful and strategic planning for employers and foreign nationals entering into or engaged in the immigrant visa process will be necessary while we continue to advocate zealously for reform to address these antiquated quotas. These green card backlogs illustrate the need for comprehensive immigration reform. In particular, a long overdue increase in employment based green card availability would play a major role in making future generations of individuals feel welcome to come to our nation of immigrants and in spurring sorely needed innovation and prosperity.