The availability of employment-based immigrant visas for the United States has been less predictable this fiscal year than in the past.  This Alert can help plan for the future.

On June 19, 2012, the US State Department provided insights to the American Immigration Lawyers Association on the availability of employment-based immigrant visas.  This Alert shares the predictions made by the State Department.  This is valuable information for planning, but with the understanding that not even the State Department can guarantee the future.

The EB-2 worldwide category is expected to be currently available on after the US government's new fiscal year begins on October 1, 2012.  In the meantime, visa availability for EB-2 worldwide is likely to move back to even earlier priority dates and may even become unavailable as early as June until the new fiscal year.

The EB-2 categories for individuals born in India and China are likely to move from the current unavailable to August or September 2007, but only when the new fiscal year begins.  Forward movement thereafter is unlikely until April or May 2013.  Indian and China born EB-2 applicants for permanent residence who were able to file in 2012 when the priority dates move forward relatively quickly are like to be waiting years for the immigrant visa to again become available and only then will their resident status be granted.

This new information means that companies are more likely to continue to extend nonimmigrant visas in order to continue foreign employees permission to live, work and travel in the U.S.  Changes in an employee's job duties, job location or job title should be evaluated with counsel to determine what impact, if any, the change will have on the employee's ability to immigrate to the U.S.  Further, the impact on the nonimmigrant visa status should be considered as well to minimize any disruption in employment.

Explanation of Immigrant Visa Categories

Family-Based (FB)

  1. Unmarried Sons and Daughters of Citizens:  23,400 plus any numbers not required for fourth preference.
  2. Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:
    1. Spouses and Children:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;
    2. Unmarried Sons and Daughters (21 years of age or older):  23% of the overall second preference limitation.
  3. Married Sons and Daughters of Citizens:  23,400, plus any numbers not required by first and second preferences.
  4. Brothers and Sisters of Adult Citizens:  65,000, plus any numbers not required by first three preferences.

Employment-Based (EB) Categories

  1. Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.
  2. Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.
  3. Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers".  
  4. Certain Special Immigrants:  7.1% of the worldwide level.
  5. Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395