This article addresses the rather stunning retrogression of some of the employment-based permanent residence categories as announced in the Visa Bulletin on September 13, 2005. Persons who are in the Employment-Based First (EB1) worldwide category, such as those in possession of a Multinational Managers/Executive, Extraordinary Ability, or Outstanding Researcher Immigrant Petition approval (other than those from China and India), are not currently impacted by the developments cited in this article. The target audience of this article is primarily those who are the subject of a permanent residence case based upon a labor certification application and who will fit into the Employment-Based Second (EB2) and Employment-Based Third (EB3) categories.
Overview of the Immigrant Quota System
With a few exceptions, such as with regard to foreign nationals who marry U.S. citizens and qualify as "immediate relatives," the great majority of foreign nationals who choose to immigrate to the U.S. are subject to an immigrant quota system. The immigrant quota system limits the number of foreign nationals who can become permanent residents of the United States during each federal year. All employment-based immigrants are subject to both a per category quota, and a per country quota.
The Per Category and Per Country Quotas
The per category quota imposes a numerical limit on the number of employment-based immigrants in possession of an I-140 Immigrant Petition approval (or who potentially qualify for an I-140 Immigrant Petition approval and qualify to concurrently to file a permanent residence application with the I-140 Immigrant Petition) who can apply for and be approved for permanent resident (i.e., "green card") status each year. The per country quota imposes a numerical limit on the number of immigrants who can apply for and qualify for permanent residence in each category from each country. The concept behind the per country quota is that citizens of one particular country should not take up more than a certain percentage of the overall available slots in a particular category. The country to which a foreign national is assigned for quota purposes is determined by their country of birth rather than by their country of citizenship. In some cases, one may be "cross-charged" to another country such as to a spouse's country of birth.
How the Quota System Works
A foreign national obtains a place on line (known as a "priority date") under the employment-based immigrant quota system when the employer files the first stage of the permanent residence process. For most foreign nationals, this is when the employer files a labor certification application with the U.S. Department of Labor. For those employees who are exempt from the labor certification requirement because they are in a category such as the Multinational Manager category, the Immigrant Petition filing establishes their priority date.
The immigrant quota system has no impact on an employer initiating the labor certification process or the Immigrant Petition process. Both of these stages can run their course regardless of the state of the immigrant quota system, and any backlogs.
Each month the U.S. Department of State ("DOS") publishes a Visa Bulletin which provides the immigrant quota system cut-off for each family-based and employment-based (EB) category. You can locate the Visa Bulletin at: http://travel.state.gov/visa/frvi/bulletin/bulletin_2631.html. DOS usually issues the Visa Bulletin just prior to mid-month.
The EB categories that our clients most commonly utilize are EB1 (for labor certification exempt Priority Worker), EB2, and EB3. When you visit this link, you will note that some of the EB categories bear a designation of "C" and some categories list a specific date. If the category is marked "C," such as the EB2 category for "All Chargeability Areas Except Those Listed," this means there is no backlog in that EB category. "U" means temporarily unavailable. Therefore, regardless of the foreign national's priority date, he or she can apply for permanent residence once eligible to do so. For example, if a foreign national from Sweden obtains a labor certification approval that would give rise to an EB2 case, the Swedish national then immediately can file a permanent residence application with U.S. Citizenship and Immigration Services ("CIS") concurrently with an EB2 I-140 Immigrant Petition. If, by contrast, there is a "cut off" date in the column, this means that a foreign national may only file a permanent residence application with CIS if the foreign national possesses a priority date equal to or prior to the date in that category in the Visa Bulletin. For example, for October 1st, in the global category referenced above, DOS established a March 1, 2001 priority date cutoff in the EB3 category. If a Japanese citizen has an EB3 priority date of March 15, 2001, she would be unable to file her permanent residence application until the March 1 cut-off date advances 15 days to March 15, 2001.
The Two-Headed Issue Regarding Permanent Residence Filing and Approval
The issue of priority date cut-offs has a dual impact on permanent residence cases. First, a foreign national cannot file his or her permanent residence application unless there is a current priority date for the EB category into which the case fits. Therefore, a category that is backlogged and for which the foreign national's priority date is not "current" prevents the foreign national from filing an I-485 permanent residence application and getting into the queue for a final decision. The retrogression in EB priority dates for many categories for October 2005 and beyond will potentially result in a very significant delay in permanent residence filings for many employees.
Second, for those who already have an I-485 application pending because they filed when their priority date is current, they may find that their case, which was getting close to a final permanent residence decision by CIS may now take substantially longer to be decided. This is because CIS cannot approve the I-485 application until the priority date actually is current. Therefore, when an EB category retrogresses (i.e.,. a "C" turns into a cutoff number earlier than the priority date, or a priority date moves backward in time to a point prior to the foreign national's priority date), a foreign national may encounter a frustrating and unanticipated delay in receiving a final decision.
Will Foreign Nationals Facing Quota Backlogs Run Out of Time and Have to Leave the U.S.?
Under the "AC21" protective provision of law, an H-1B work visa status holder may continue to extend H-1B status in one year increments beyond the usual six year limit, as long as their permanent residence case remains viable (i.e., is not denied) and the foreign national established his or her priority date prior to the beginning of the sixth year in H-1B status. For other visa categories, there is no such protection and an individual consultation should take place.
How Do I Know if I Am in the EB2 or EB3 Category?
If you already have an EB2 or EB3 Approval Notice, you will be able to judge this by reviewing the I-797 Approval Notice and seeing whether it refers to "Section: Skilled Worker or Professional" which translates to EB3 or "Section: Advanced Degree Professional" which translates to EB2. If an I-140 has been filed for you but not yet approved, you would look at the I-140 Immigrant Petition on the first page to see which of these categories applies. If you are the subject of a pending labor certification, skill sets which require a Master's Degree or above are EB2 . Those that lead with a Bachelor's Degree are generally going to be EB3 unless the skill set also requires five years of progressive experience. Those skill sets which have alternative skill sets (such as a BS plus three or an MS plus one) are generally EB3 if either of the alternative requirements is less than a MS degree or a BS plus five years.
Why Did the Backlogs Appear So Fast and Why Was the Retrogression So Great?
The DOS is a rather cryptic organization in terms of disclosing information, much the way the Federal Reserve Board tends not to give clear signals about interest rate movements in the future. Compared to the Federal Reserve Board, DOS is even more guarded in divulging information. Several things likely contributed to the significant retrogression which has EB3 worldwide moving from unavailable to March 1, 2001, the EB categories for China retrogressing to 2000 and the EB2 and EB3 categories for India moving to 1999 and 1998, respectively. First, during the late 1990s, due to the tech boom, the U.S. Congress raised the quotas on H-1B workers which gave rise to three years of unprecedented numbers of H-1B nonimmigrant arriving in the U.S., many of whom were from India and China. A significant percentage of these workers ultimately have been sponsored by U.S. employers for labor certifications that led to EB2 and EB3 Immigrant Petitions (in cases where such labor certifications were approved). Secondly, after 9/11, CIS (formerly "INS") was severely criticized for approving visa applications filed by terrorists. As a result of this, CIS revamped its security clearance process which took several years. During that time, CIS all but suspending deciding permanent residence cases, creating a very significant number of unused slots under the quota systems in recent years. This year, after finally fixing the security check process, CIS approved a huge number of cases as it hammered away at the sizeable backlog. Finally, the same legislation which had temporarily raised the H-1B cap also temporarily allowed Indian and Chinese nationals to tap into the "global" EB categories with respect to unused numbers.
All of these temporary factors contributed to a large surge of EB based permanent resident applications and a decrease in CIS permanent residence decisions over the past three or four years. As a result, it appears that DOS was caught by surprise when it recently looked at the numbers and saw a more severe imbalance than it may have anticipated. While it had suggested in recent months that there may be cutoff dates established come the October 2005 bulletin since it is the first month of the new federal year, DOS' move to establish such significant retrogressions in the global EB3 category and in the China and India EB1, EB2, and EB3 categories have shocked the immigrant community.
What Will Happen With The Priority Dates? Can It Really Take 4 to 7 Years to Obtain a Permanent Residence Decision? Do I Have No Job Flexibility During This Period?
Just as with the stock market, predicting the future of the EB quota system with any accuracy is virtually impossible. Undoubtedly, as in the past, when immigration quotas stood in the way of the U.S. business community being able to attract and retain uniquely talented foreign nationals to compete globally, U.S. business will enlist the help of immigration-friendly congresspersons and senators to introduce legislation to alleviate the quota backlogs. It would be harder to attract and retain the best and brightest in the world if they will face such significant waits to become permanent residents. However, the outcome and, even if successful, the timing of such legislative fixes is uncertain as some labor organizations, zero population growth advocates, and other forces will certainly work to derail such immigration relief. You can find bills introduced in the House of Representatives at the following link: http://thomas.loc.gov/.
Hopefully, at some point in 2006, it will become clearer whether there may be legislative relief with respect to the immigrant quota backlogs and what form that relief will take. Some relief could potentially independently become available with respect to the reclamation of unused numbers from prior years, although the effect of this would likely be limited.
In the meanwhile, companies and their employees can proceed with cases through the first two stages and can position themselves to file the last stage of the case where that becomes possible. In addition, for H-1B holders, AC21 protection affords relief from the H-1B cap.
One of the unfortunate consequences of the EB backlogs is that, as our audience knows, if the foreign national migrates out of the job that is the subject of the labor certification process or even to the same job but in a different city, then the government may take the view that the labor certification approval is meaningless and the employer needs to start the process again for the new job. Only if the I-485 application has been pending for over 180 days is the employer safe to make some degree of change to the job and even then the new job must be in the same or similar occupation to the old job. Hence, the quota backlogs may "bind" the employee to the same job for longer than anticipated and promotions or other moves within the company may be limited and must be carefully evaluated before a change takes place to determine the risk level associated with the move.
Conclusion
There is no question that the significant and unexpectedly large quota backlog development is a major negative for all concerned with the progress of employment-based immigration cases. However, an understanding of the issues should help soften the impact at least for some until legislative relief hopefully arrives.