Visa Backlogs: Permanent Resident Applicants Want the Wait to Be Over

On October 1, 2013, the U.S. government fiscal year (FY 2014) will start, and the allotment of 140,000 employment-based visas will become available for individuals seeking permanent residence through their employment. As in past years, this allotment will not cover all of the employment-based applicants seeking permanent residence. Unfortunately, many individuals — especially those from India and China — will go yet another year (or many more) before being able to secure permanent residence in the United States.

Background on Employment-Based Visa Backlogs

As prescribed in the Immigration and Nationality Act (INA), employment-based preference visas are limited to 140,000 per year as well as a 7 percent per-country annual cap. Visa numbers are further subdivided in employment-based cases according to preference categories.

On a monthly basis, if demand is less than supply for a given preference visa category and country of birth — or "country of visa chargeability" as it is referred to in the Visa Bulletin issued monthly by the Department of State (DOS) — immigrant visas are deemed current and are designated as such in the report with a "C". This means that immigrant visa numbers are available for qualified applicants in that particular visa preference category and country of birth. If the demand exceeds supply for a particular visa category or foreign state, that category is classified as "oversubscribed" and DOS must impose a cut-off date. In this instance, only applicants who have a priority date earlier than the date listed in the Visa Bulletin may be given an immigrant visa number.

Visa Bulletin

The DOS publishes a monthly report referred to as the "Visa Bulletin" which outlines the visa availability for individuals seeking permanent resident status in the U.S. The Visa Bulletin is used as a guide for the issuance of immigrant visas at U.S. consulates and embassies around the world and to determine whether a Form I-485, Application to Register Permanent Residence or Adjust Status (green card application) may be accepted or adjudicated by the U.S. Citizenship and Immigration Services (USCIS).

The Visa Bulletin is generally issued on or around the 8th day of each month and contains data which will be used to govern immigrant visa issuance for the following month.

As a practical example, the October 2013 Visa Bulletin lists a cut-off date of September 15, 2008 (15SEP08) for the second-preference employment-based category (EB-2) for individuals born in China. As such, a person born in China would be qualified to file a green card application with USCIS, or an immigrant visa petition with a consulate or embassy abroad, only if their priority date is on or before September 15, 2008.

The cut-off dates listed in the Visa Bulletin change from month to month and generally tend to move forward as DOS and USCIS work to adjudicate pending cases. However, movement varies from category to category, and the dates do not always move forward. In some instances, a priority date listed as current in the Visa Bulletin one month will not be current the next month. This is known as visa retrogression and most often occurs when the annual limit on immigrant visas has been reached. When the new fiscal year begins on October 1, a new supply of visa numbers is available and usually — although not always — returns visa cut-off dates to where they were before retrogression occurred. Movement will also occur during the last several months of a fiscal year (June, July, August, September) as the government tries to use up the prior year's allotment before the new allotment is released. 

In certain visa categories, the demand far exceeds the supply of visas for a given year and as a result, visa queues or ‘backlogs' are created. The visa backlogs in the second- and third-preference (EB-2 and EB-3, respectively) employment-based categories for China and India have been particularly lengthy given the significant number of applicants from these countries. An individual born in India and eligible to apply for an immigrant visa in the EB-3 category is currently facing a backlog of more than 10 years.

Priority Date Movement in FY 2013 / Comparison to Recent Years

With the approach of FY 2014, this is a good time to look back at the priority date movement in FY 2013 and review in comparison to movement in prior years. In FY 2013, the EB-1 preference category for all nationalities, including India and China, remained current throughout the year. Looking back at the EB-2 preference category for all nationalities (excluding China and India), this preference category also remained current for most of FY 2013, except for October 2012. In October 2012, there was a cut-off date of January 1, 2012, for the EB-2 all other category. However, this category quickly returned to current in November 2012 and remained current for the rest of the months in FY 2013.

The most challenging categories for visa backlogs and retrogression are EB-2 China, EB-2 India, EB-3 China, EB-3 India and EB-3 all other nationalities. FY 2013 for these categories was no different than the past several years. Throughout the year, these categories can move forward, move backward and stay the same. Here is the outline of EB-3 China for FY 2013:

• 10/2012: February 8, 2006
• 11/2012: April 15, 2006
• 12/2012: July 1, 2006
• 01/2013: September 22, 2006
• 02/2013: November 15, 2006
• 03/2013: January 22, 2007
• 04/2013: April 22, 2007
• 05/2013: December 1, 2007
• 06/2013: September 1, 2008
• 07/2013: January 1, 2009
• 08/2013: January 1, 2009
• 09/2013: July 1, 2010
• 10/2013: July 1, 2010

This breakdown shows good movement in the EB-3 China category. Unfortunately, not all categories saw this same movement in FY 2013. For example, EB-3 India inched along or stayed the same for most of the year. From October 2013 through August 2013, EB-3 India saw movement of about three months during this time period, ranging from October 15, 2002, until January 22, 2003. Then, for September 2013, EB-3 moved forward several months until September 22, 2003.

Reviewing the EB-3 China dates with the EB-2 China dates, EB-3 China actually has fewer backlogs right now than EB-2 China. As outlined in the Visa Bulletins for September 2013 and October 2013, EB-3 China had advanced more than EB-2 China. The current priority date for EB-3 China is July 1, 2010, whereas the EB-2 China date is September 15, 2008. We expect moving further into FY 2014 that EB-3 China will retrogress. However, tracking these numbers will continue to be important as we move into FY 2014.

Attached below is a chart that shows the progression and retrogression of priority dates for the EB-2 China, EB-2 India, EB-3 China, EB-3 India and EB-3 all other nationalities over the last few years.

This chart reflects the up and down nature of these categories, as well as the many years that it can take certain nationalities in certain categories to be able to apply for the last step of the permanent residence (e.g., an I-485 adjustment of status application) and to ultimately be approved for a green card.

Visa Backlog Relief With Comprehensive Immigration Reform?

There is hope that the passage of comprehensive immigration reform would help reduce current visa backlogs, particularly in the employment-based visa categories. Current proposals in both the version of the reform bill which passed the U.S. Senate in June 2013 and in separate bills now before the U.S. House of Representatives contain specific measures aimed at reducing the wait for a green card. These include:

• The creation of a new green card category for U.S. advanced-degree graduates in STEM fields
• An increase in the total number of available EB-2 and EB-3 green cards
• The elimination of per-country annual green card limits

For further analysis and information of comprehensive immigration reform initiatives in the Senate and the House of Representatives, please see the following legal update articles:  

Comprehensive Immigration Reform in the House: Getting Lost in the Shuffle

Senate Passes Landmark Comprehensive Immigration Reform Bill: Future in House Uncertain
 
For additional information regarding visa availability and priority dates, visit the USCIS website.

Conclusion

Obtaining permanent residence is a waiting game for many nationalities, especially for those born in China and India. Although there has been some movement in the backlogs for some categories and nationalities, any significant movement and clearing out of the backlogs will ultimately happen only if there is a change through legislation. The number of individuals seeking employment-based permanent residence is only increasing, especially those from India and China. Therefore, Congress must find a way through either Comprehensive Immigration Reform or through separate piecemeal legislation to assist these highly-skilled workers (many in STEM fields) in obtaining permanent residence so that they can call the U.S. home after such long delays and wait times.