More than two years ago in October 2005, the U.S. Department of State (DOS) significantly retrogressed the employment-based immigrant visas (a.k.a. employment "green cards") in many categories. The retrogression came as a surprise to many employers and foreign nationals because the DOS previously stated that it did not anticipate that these retrogressions would occur so early. Additionally, the DOS never indicated that the retrogressions would be so severe. However, due to the retrogressions, many foreign nationals are now unable to commence and/or complete the last stage of the "green card" process (namely the adjustment of status process if completed in the United States) possibly for many years until their priority dates become current.
Every year the government is allowed to issue a certain number of employment-based "green cards." When an employer files a Labor Certification Application with the U.S. Department of Labor (DOL), the date of which the Application is received by the DOL is the foreign national’s priority date. If the foreign national is exempt from the labor certification process, the date on which the U.S. Citizenship and Immigration Services (USCIS) receives the Immigrant Petition for Alien Worker (Form I-140) is the foreign national's priority date. Between 2001 and early 2005, the number of employment-based "green cards" available never exceeded demand due to the fact that the DOL and the USCIS were not timely or efficiently adjudicating their petitions and applications. However, within the past three years, both the DOL and the USCIS have implemented backlog reduction programs to eliminate their backlogs. As the USCIS and DOL have begun to more expediently adjudicate their applications, the demand for employment-based "green cards" has begun to exceed the annual available supply. Therefore, the DOS has been forced to establish priority date cut-offs in many employment-based immigrant visa categories.
Additionally, the demand for employment-based "green cards" from nationals of certain countries (namely China, India and Mexico) has also exceeded the per-country limits on availability. Therefore, in addition to the priority dates, foreign nationals will also have to determine their country of chargeability in order to determine which priority date on the DOS' monthly Visa Bulletin applies to them. For most foreign nationals, country of chargeability is based on the country of birth, not the country of citizenship. For example, a foreign national who is born in India and has subsequently become a citizen of Canada is still chargeable to the priority date for Indian nationals. A limited exception does apply for foreign nationals who are married to a spouse who was born in a country different than the principal foreign national's country of birth.
Since the severe retrogressions in October 2005, the DOS has advanced the priority dates in all employment-based categories which are retrogressed. For example, in the October 2005 Visa Bulletin, the DOS retrogressed the employment-based third category (EB-3) for all foreign nationals (except for Chinese, Indian and Mexican nationals) to March 1st, 2001. Since this date, the DOS has rapidly advanced and then as rapidly reversed the priority dates. For example, in July 2007, the DOS made all of the employment-based immigrant visa categories Available because it wanted to ensure that all of the available employment-based immigrant visa numbers were used in fiscal year 2007 (October 1, 2006 to September 30, 2007). Due the USCIS expediting the adjudications of pending adjustment of status applications, the DOS then had to make all employment-based immigrant visa categories Unavailable in August 2007. After this ricochet from making all of the categories Available to then making them Unavailable, the DOS in October 2007 decided to reestablish priority dates which were in place in January 2007. A detailed analysis about the current Visa Bulletin is contained on our firm's website at: http://www.masudafunai.com/eng/legalupdates/index.asp?F_MONTH=9&F_YEAR=2007&aid=7&F_KEYWORD=&a=false&cid=2#1755. This information is updated on a monthly basis after the DOS releases its current Visa Bulletin.
Foreign nationals will have to wait for their priority date to become Current in order to commence the adjustment of status process and obtain an Employment Authorization Document (EAD) and/or Advanced Parole (AP) travel document. If the foreign nationals have been able to commence the adjustment of status process, but then their priority dates have retrogressed, they will not be able to complete the process until their priority dates again become Current. However, during this time, while they are waiting for their priority dates to become Current, they will be able to continue to extend their EAD and AP documents. Additionally, if their adjustment of status application has been pending for more than six months and their Form I-140 has been approved, their "green card" process will be portable so that they may commence employment in the same or similar occupation as the original offer with a new employer without the abandoning the "green card" process. However, if the foreign nationals have been unable to meet these conditions and change employers, they may have to commence the "green card" process again through their new employer and may not be able to retain their old priority date.
For H-1B nonimmigrants who may have to wait many years for their priority dates to become current, they will be able to extend their status beyond the six-year maximum period of stay in H-1B classification as long as either: 1. they have commenced the "green card" process before they reached their fifth year in H-1B classification and their "green card" process is pending; OR 2. they have had a Form I-140 Immigrant Petition for Alien Worker approved on their behalf and their priority date is not available.
For foreign nationals in L classification who will have to wait many years for their priority dates to become current, they may want to change their status to H-1B classification when the next H-1B quota becomes available (earliest filing date for the next H-1B quota is April 1, 2008 with an October 1, 2008 start date), unless the foreign national qualifies for one of the limited exceptions to the H-1B quota. Unlike H-1B nonimmigrants, L nonimmigrants cannot extend their stay beyond the maximum limits (7 years for L-1A classification and 5 years for L-1B classification) if they are pending in the “green cardEprocess.
The future movement of the priority dates will depend on how quickly the USCIS and DOL continue to process their backlogs. The DOL recently announced that it has completed processing approximately 360,000 applications which were pending at its Backlog Elimination Centers (BEC). Additionally, the DOL has indicated that its PERM National Processing Centers are processing approximately 100,000 PERM applications each year. These applications qualify for either the EB-2 or EB-3 categories, based upon the stated minimum requirements in the Labor Certification Application. Please note that the government is only able to issue approximately 40,000 EB-2 and 40,000 EB-3 "green cards" annually, with national’s from one country receiving no more than 7% of the "green cards." Additionally, the USCIS indicated that it received approximately 320,000 Adjustment of Status Applications when all of the employment-based immigrant visa categories were Available pursuant to the DOSEJuly 2007 Visa Bulletin. As previously stated, the USCIS will not be able to complete the processing of these applications until the priority date on the application becomes Available again, which may possibly take years.
Finally, priority date movement will also depend on whether a legislative change is enacted to increase the number of employment-based "green cards" available each year. Last year and also earlier this year, Congress debated Comprehensive Immigration Reform legislation. This legislation would have included a significant increase in the number of employment-based "green cards" available each year and may have exempted dependents from the employment-based "green card" numerical limitations. This legislation never passed Congress. Although Comprehensive Immigration Reform legislation may not be considered by Congress again until after the next Presidential election, there are prospects that some limited relief to make additional employment-based immigrant visa numbers available may pass as a separate bill within the next year.
Additional information about the movement of the employment-based priority dates and legislation to increase the availability of employment-based "green cards" will be contained in our firm's weekly Immigration Updates when it becomes available.