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Unavailability of Immigrant Visa Numbers – FAQ Regarding the Quota Backlog

Recent changes in the green card priority dates have resulted in many intending immigrants being unable to complete the green card process. The FAQ list below has been drafted to help to address many of the commonly asked questions regarding the impact of the changes in priority dates.

How many immigrant visas (green cards) are available each year?

The Immigration and Nationality Act provides that every year 480,000 immigrant visas (green cards) are available to family sponsored immigrants and 140,000 are available to employment based immigrants. The AC21 law allowed for the recapture of unused employment based numbers from past years. For Fiscal Year (FY) 2005, the recapture amount was significant and resulted in approximately 249,000 visas being made available to employment based immigrants. For FY 2006, the U.S. Department of State (DOS), which is charged with tracking visa numbers, has estimated that the number of available visas is likely to be much smaller, perhaps only 156,000. The DOS has estimated that for FY 2007 the number of available visas may be 148,000.

Currently there are approximately 345,000 labor certification applications pending with the U.S. Department of Labor. Even if no new cases under any employment based category were filed for next two years, the labor certification applications currently pending would be sufficient to exhaust the annual quota. Given that new cases are continuing to be filed each day, the demand for employment based green cards is likely to exceed the supply by a large amount for the foreseeable future.

What is a priority date?

The priority date is the date on which an application for labor certification or an immigrant petition sponsoring a foreign worker is first filed with the government. The priority date establishes the immigrant’s place in the green card queue. Each month, the Department of State announces which priority dates are currently available to foreign workers who seek to immigrate to the U.S. The priority dates only affect the filing and the adjudication of the last and final step of the green card process, which is adjustment of status, through which employees obtain a green card here in the U.S., or consular processing though which employees obtain a green card through a U.S. consulate abroad. The employer’s ability to file labor certification applications and I-140 immigrant petitions is not affected by changes in the priority dates.

The DOS publishes a bulletin each month to announce any new changes in the priority dates. Sometimes these dates can advance forward by many months or even years. At other times, they can retrogress by equally large amounts of time. The movement of the priority dates is dictated by the number of persons who sought to complete the green card process in the previous month.

Why can’t the Department of State do a better job of predicting the waiting times to immigrate?

One immigrant visa quota allotment is used by each individual who obtains a green card. This means that a foreign worker with a spouse and two children would use four immigrant visa numbers to immigrate his family. At the time the immigrant petition or labor certification case is filed, a foreign worker may be single with no dependents. By the time he arrives at the last step of the process, filing his permanent resident visa application, he may have a spouse and possibly children born outside of the U.S. These kinds of changes in the number of family members seeking a green card between the initial start of the green card process and its completion years later make it impossible for the DOS to predict the exact number of immigrant visas (green cards) which will be used each month.

Why are the waiting times different for different countries?

With limited exception, the law provides that the total number of immigrant visas available to persons from any single foreign country may not exceed 7% of the visas made available in a given fiscal year. The result is that persons from the oversubscribed countries of China, India, Mexico and the Philippines must often wait longer to immigrate than persons from countries with lower levels of immigration to the U.S. This is why it is especially important for persons from the oversubscribed countries to establish a priority date as soon as possible. In the recent past, it has sometimes taken 4-6 years or longer for persons from India and China to complete the green card process due to priority date backlogs, while the wait for non-oversubscribed countries has been significantly less, and often non-existent.

Is immigrant visa availability based on country of birth or country of citizenship?

Immigrant visa availability is based on country of birth. Thus, a person born in China who obtains a Canadian passport would still be subject to the quota for all persons born in China.

Can a spouse’s country of birth affect the quota category?

Yes, spouses can be “cross-charged” to each other’s country of birth. This means that an Indian person can apply through his spouse from Bangladesh. In such a case, two visas would be charged to Bangladesh and none would be charged to the quota for India.

What can be done to mitigate the waiting times?

The only mitigating factor within the employer’s control is how quickly a labor certification application or immigrant petition is filed.

H-1B time is limited to 6 years. What happens if the green card process is not completed before the employee reaches his 6th year of H-1B time?

An employee who is the beneficiary of a labor certification application pending at least 365 days may obtain additional H-1B time in increments of one year. An employee beneficiary subject to the priority date backlog who has obtained an approved I-140 immigrant petition may obtain additional H-1B time in increments of three years.

My priority date was current when my adjustment of status case was filed. Now my priority date is no longer current. How does this affect me?

An adjustment of status case will be considered properly filed as long as the priority date was current at the time the case was received by Citizenship and Immigration Services (CIS). A retrogression in priority dates only affects the amount of time it will take the CIS to complete the adjudication of the case and does not affect the validity of the filing. Applicants may continue to obtain Employment Authorization Documents (EAD cards) and Advance Parole travel authorization until the case is adjudicated.

H-1B Advance Degree Exemption

The most recent information regarding the number of new H-1B visas available to persons who have obtained a master’s or higher level degree from a U.S. academic institution can be found here. Out of the 20,000 visas allocated for fiscal year 2006, approximately 13,000 have already been assigned to cases already filed. Although it is impossible to predict precisely how long the remaining 7,000 visas will last, the remaining visas will likely be exhausted prior to the start of the next fiscal year on October 1, 2006, and possibly prior to January 1, 2006. For this reason, any employer planning to utilize this category should apply for a new H-1B visa as soon as possible in order to avoid being subjected to this cap. Extensions of status are not subject to the cap.

Increased Filing Fees

From October 26, 2005, the CIS filing fees will increase approximately $10 per application or petition. The Deputy Director of the USCIS has explained that these increases are necessary due to the factors of inflation and the annual mandatory payroll increases for USCIS employees. The new fee list can be found here.

U.S. Visit Begins Deployment of Biometric Entry Procedures to Additional Land Border Ports of Entry

The U.S. Department of Homeland Security (DHS) has expanded its U.S. Visit biometric entry procedure system to additional land border ports of entry. The entry system deployment will be completed by December 31, 2005. Although most ports of entry will have the entry procedure system in place, many do not yet have the exit system in place, which is the next phase of the system deployment. Foreign workers departing the U.S. should be sure to complete the required exit procedures prior to departing the U.S. if an exit system is in place at the port from which they will depart. To date, DHS has been reasonable in its implementation of the system and not penalized persons who failed to properly check out prior to departing the U.S. At some point in the future, however, the DHS may begin to refuse reentry to foreign workers who fail to properly check out prior to departure. It is recommended that persons subject to the system get in the habit of completing the designated check out procedure prior to departing the U.S. in order to avoid potential future problems in re-entering the U.S. The U.S. Visit system only applies to nonimmigrant visitors. It does not apply to lawful permanent residents (green card holders) or U.S. citizens. The special check-out procedures for certain Middle Eastern and Islamic countries are still in effect under the NSEERS program, which is separate from U.S. Visit. Employees who have been involved in this program should take special care to comply with all its requirements.

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Attorney Robert Nadalin is a highly qualified and dedicated California Immigration Lawyer who can help you in your time of need. Learn more about your legal options during an honest consultation in San Diego, CA.