Eaton Peabody

Current State of Employment-Based Visa Numbers - November 18, 2005

Current State of Employment-Based Visa Numbers

The Immigration and Nationality Act (INA) sets limits on how many employment-based immigrant visas may be issued each fiscal year (from October 1 through September 30) in all visa categories, by country. Recently, after a number of years where the availability of employment-based visa numbers was not an issue, limitations on these numbers have come back into play due to a number of factors.

Background

As noted, immigrant visa numbers are limited by fiscal year and nationality. Employment-based visas are issued to eligible immigrants in the order in which a petition on behalf of each has been filed. In addition, no one country may have more than a specific percentage of total visas available annually. If the limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the waiting list based on the date of their case filing, known as the “Priority Date.” For employment-based cases, the Priority Date is established either by the date on which a labor certification is filed with the U.S. Department of Labor, or on the date CIS receives the I-140 immigrant petition. For I-140s, the Priority Date does not attach until the petition is approved.

Effect on an alien’s ability to adjust status

Although the above limitations refer to “visa” numbers, they also affect the adjustment of status process, whereby an alien seeks to change or “adjust” status from whatever status they currently hold in the U.S. to that of permanent resident. The adjustment of status process is regularly pursued by aliens in lieu of immigrant visa processing abroad. Currently, aliens present in the U.S. who wish to apply to adjust their status must have a visa number available to them in order to even file the adjustment of status application.

Legislation is currently pending in the U.S. Congress which, among other features, would allow aliens to at least file adjustment applications if a visa number is not currently available. However, as is presently the case, the application will be held in abeyance until a visa number becomes available to the alien. Allowing aliens for whom a visa number is not available to at least file adjustment applications has the primary benefit of allowing dependents to apply for and obtain employment and travel authorization while the application is pending, something which they currently cannot do.

The monthly Visa Bulletin

The U.S. Department of State publishes monthly Visa Bulletins which track the availability of immigrant visas. See http://travel.state.gov/visa/frvi/bulletin/bulletin_1770.html. The bulletin for any given month is generally published about half way through the preceding month. For example, the October Visa Bulletin was published in mid-September, indicating that, as of October 1, 2005, visa numbers for Indian and Chinese nationals would become unavailable. This resulted in flood of adjustment applications to beat the October 1 st deadline. As noted in the October Visa Bulletin, the Department of State predicts further limitations on future visa availability, and, where cutoff dates are established, slow forward advancement of these dates.

To illustrate how the Visa Bulletin operates and how visa availability changes from month-to-month, one can look at Indian nationals in the second employment-based preference as an example.

• In the October Visa Bulletin, visa numbers became unavailable for such aliens as of 10/1/05. The October Visa Bulletin did not establish a cutoff date.
• In the November Visa Bulletin, a cutoff date of November 1, 1999 was established, meaning only those aliens whose labor certification applications were filed (or I-140s approved) prior to that date could apply to adjust status or for an immigrant visa. Although this looks like a potential 6-year wait, cutoff dates do not progress at a set rate.
• In the December Visa Bulletin, this November 1, 1999 “cutoff date” advanced by 8 months to July 1, 2000.

It is virtually impossible to accurately predict forward movement in cutoff dates, and it is unlikely that they will advance at the same 8-month per month pace going forward. In fact, depending on demand, cutoff dates have “retrogressed” in the past, meaning they have actually gone backwards before again moving forward. Also, it is possible that a cutoff date for “all chargeability areas” could be established in 2006, meaning a waiting list could be established on a worldwide basis. In the November Visa Bulletin, the U.S. Department of State provided a fairly detailed explanation of the issue with regard to employment-based immigrant visa numbers, which is reproduced at the end of this advisory.

Pending legislation

The pending legislation mentioned above would also free-up more employment-based visa numbers, by:

• Not counting visas for dependents (spouses and minor children) against the annual limits on employment-based immigrant visas; and
• Recapturing unused visas from prior years.

This legislation has passed the Senate and is currently pending in the U.S. House. Given the number of foreign professionals and other workers currently working in the U.S., and U.S. employers’ reliance on them, it only makes sense to address what has become a pronounced issue.

D. EMPLOYMENT PREFERENCE VISA AVAILABILITY

The backlog reduction efforts of both Citizenship and Immigration Services and the Department of Labor continue to result in very heavy demand for Employment-based numbers. The amount of cases currently being processed is sufficient to use all available numbers in many categories. The level of demand in the Employment categories is expected to be far in excess of the annual limits, and once established, cut-off date movements are likely to be slow.

WHAT CAUSES THE ESTABLISHMENT OF CUT-OFF DATES?

The Visa Office subdivides the annual preference and foreign state limitations specified in the Immigration and Nationality Act (INA) into twelve monthly allotments. The totals of documentarily qualified applicants that have been reported to VO are compared each month with the numbers available for the next regular allotment and numbers are allocated to reported applicants in order of their priority dates, the oldest dates first.

• If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered “Current.” For example, if the Employment Third preference monthly target is 5,000 and there are only 3,000 applicants, the category is considered “Current”.
• Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be “oversubscribed” and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the Employment Third preference monthly target is 5,000 and there are 15,000 applicants, a cut-off date would be established so that only 5,000 numbers would be used, and the cut-off date would be the priority date of the 5,001st applicant.

WILL THERE BE CUT-OFF DATES FOR ANY ADDITIONAL FOREIGN STATES IN THE FIRST AND SECOND PREFERENCE CATEGORIES?

It may be necessary to establish a cut-off date for the “All Chargeability Areas” Second preference category at some point during the second half of the fiscal year. It is too early to estimate whether future demand will warrant such action. As of October 1st, cut-off dates for the First and Second preferences for China and India were established due to heavy demand; cut-off date movement is expected to be limited until a demand pattern has been determined.

WHY ARE THERE CUT-OFF DATES THIS YEAR AS OPPOSED TO PREVIOUS YEARS, WHEN THE CATEGORIES WERE CURRENT?

While the Employment categories had been “Current” for almost four years, several important factors affected the decision to implement cut-offs for FY-2006.

• Prior to July 2001, demand for Employment numbers was such that cut-off dates were in effect for many categories, and that is the case once again for FY-2006.

The reasons the Employment categories had become current were:

• The American Competitiveness in the Twenty-First Century Act (AC21) recaptured a “pool” of 131,000 Employment numbers unused in fiscal years 1999 and 2000, and allowed those recaptured numbers to be used by the oversubscribed countries, and
• The substantial decline in demand for numbers for adjustment of status cases prevented the annual limits from being reached for several years.

In FY-2006, we are faced with continuing heavy demand due to the DHS and DOL backlog reduction efforts, along with an Employment limit which is approximately 40% lower than that of FY-2005. The lower annual Employment limit is a result of the virtual elimination of the “pool” of recaptured AC21 numbers, returning us to the pre-July 2001 situation.

WHAT ABOUT SCHEDULE A NUMBERS?

The 50,000 Schedule A numbers will provide relief to many Employment preference applicants, since any Schedule A applicant whose priority date is beyond the relevant Employment preference cut-off date can be processed and charged against the 50,000 limit. It is expected that Schedule A numbers will be available on a “Current” basis throughout all of FY-2006.

HOW IS THE EMPLOYMENT-BASED PER-COUNTRY LIMIT CALCULATED?

Section 201 of the INA sets an annual minimum Family-sponsored preference limit of 226,000, while the worldwide annual level for Employment-based preference immigrants is at least 140,000. Section 202 sets the per-country limit for preference immigrants at 7% of the total annual Family-sponsored and Employment-based preference limits, i.e. a minimum of 25,620.

• The annual per-country limitation of 7% is a cap, meaning visa issuances to any single country may not exceed this figure. This limitation is not a quota to which any particular country is entitled, however. The per-country limitation serves to avoid monopolization of virtually all the visa numbers by applicants from only a few countries.
• The AC21 removed the per-country limit in any calendar quarter in which overall applicant demand for Employment-based visa numbers is less than the total of such numbers available.
• In recent years, the application of the rules outlined in AC21 has allowed countries such as China – mainland born, India, and the Philippines to utilize large amounts of employment numbers which would have otherwise gone unused.
• During FY-2006, due to anticipated heavy demand, the AC21 provisions are not expected to apply, and the amount of Employment numbers available to any single country will be subject to the 7% cap. It is anticipated that the addition of unused FY-2005 Family numbers and the remaining AC21 numbers to the 140,000 annual minimum will result in an FY-2006 annual Employment limit of 152,000. This will mean an Employment per-country limit for FY-2006 of approximately 10,650.
• To illustrate the effect of the reduced per-county limitation during FY-2006 on the oversubscribed countries, it should be noted that during FY-2005 India used approximately 47,175 Employment numbers.

See U.S. Department of State, Number 87, Volume VIII, November Visa Bulletin.

Please contact Matthew S. Raynes, mraynes@eatonpeabody.com, for further information.

This paper is provided as general information, and is not a substitute for legal or other professional advice.