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Department of State Announces Major Visa Retrogression; Employment-Based Immigrant Visa Quota Limits Established


On September 13, 2005, the Department of State announced that it was establishing new cut-off dates for foreign nationals seeking permanent resident status based on labor certifications in the third employment-based preference (professional and skilled workers), as well as cut-off dates for natives of India and China seeking permanent resident status in the first and second preferences (person of extraordinary ability, outstanding researcher and professors, multinational managers, persons of exceptional ability and professionals holding advanced degrees).

These cut-off dates will result in major delays for persons seeking permanent resident status in those categories, particularly from India and China.

What Are Priority Dates, And How Are They Assigned?

Section 201 of the Immigration and Nationality Act allocates 140,000 immigrant visas per year for the employment-based preferences, and the Department of State is charged with ensuring that no more than that number of immigrant visas (or adjustments of status by USCIS) are issued in each of the government’s fiscal years. Due to processing delays at USCIS, a large backlog of cases needing employment-based visa numbers has built up, and USCIS’s recent efforts to clear that backlog have led the Department of State to re-evaluate how many immigrant visas (and adjustments of status) are likely to be issued between October 1, 2005 and September 30, 2006, and to take steps to limit the number of approvals to 140,000 per year.

The Department of State controls the number of visas issued each year though the “priority date” system. When an employment-based immigrant visa petition or labor certification is filed by an employer, the foreign national’s “priority date” is established – for example, if a labor certification was filed with the Department of Labor on September 1, 2003, and later approved, an immigrant visa petition based on that labor certification would have a “priority date” of September 1, 2003. If an immigrant visa petition not requiring a labor certification was filed on September 1, 2003, it would also have a priority date of September 1, 2003.

Each month, the Department of State issues a publication called the Visa Bulletin, in which the “priority dates” eligible to apply for immigrant visas or adjustment of status are listed. If, for example, the foreign national’s priority date is September 1, 2003, but the current priority date listed in the Visa Bulletin is November of 2002, the foreign national will have to wait to submit an application for adjustment of status, or to have a pending application for adjustment of status approved.

Why Are Indian and Chinese Natives Singled Out?

In addition to the overall limit of 140,000 immigrant visas, there is a separate limitation that no more than seven percent of the visas in any category can go to “natives” of any one country. A person is a “native” of the country in which he or she was born, regardless of current or past citizenship. For example, a person born in Kuwait of Indian parents would not be a citizen of Kuwait according to Kuwaiti law, and would be a citizen of India according to Indian law, but would be a “native” of Kuwait for purposes of immigrant visa number chargeability. Similarly, a person born on mainland China who becomes a citizen of Canada may have lost Chinese citizenship, but is still a “native” of mainland China for immigrant visa number chargeability.

The 7% limit means that overall, no more than 9800 natives of India and 9800 natives of China are eligible to immigrate to the U.S. each year in all of the employment based preferences, if all 140,000 immigrant visas are issued in the year (if less than 140,000 visas are issued, the extra visas can be issued to natives of those two countries). Since more than 38,000 natives of India and 15,000 natives of China were granted immigrant visas in 2004 (when extra visa numbers were available), it is clear that demand for visas from natives of these countries substantially exceeds the supply of available visas under the 7% limit.

What Happened This Month?

It was announced on September 13, 2005 that the “priority dates” for immigrant visas in the first and second immigrant visa preferences on behalf of persons born in India and China will be backlogged as of October 1, 2005. Until now, “priority dates” for Indian and Chinese nationals, with immigrant visa petitions in the first (extraordinary ability/outstanding researcher/ multinational manager) or second (persons holding advanced degrees or having exceptional ability, including national interest waivers) employment-based preference, were not expected to become backlogged until at least December 1 of this year, according to the Department of State. Based on information received for the first time on September 13, the backlog will actually begin as of October 1, 2005.

In addition, the Department of State has established a “priority date” for natives of all countries in the employment-based third preference (professional, skilled and other workers). This category is backlogged for natives of all countries and is expected to remain backlogged for many years.

How Does this Affect My Case?

If a foreign national falls within the third employment-based preference category because his or her job requires a bachelor’s degree or less, quota limits apply regardless of nationality. Prior to October 1, this category had been “closed” because visa numbers were unavailable for the remainder of the fiscal year, and the new fiscal year has allowed for the establishment of a priority date. If a foreign national falls within this preference, and his or her I-485 application is not yet filed, these limits will delay filing and require the maintenance of non-immigrant status, such as H-1B. Fortunately, H-1B status can be extended beyond the normal six year limit if an immigrant visa petition is approved before the end of the sixth year, but quota backlogs prevent the filing of an application for adjustment of status. The I-485 application can then be filed once the priority date is reached. If the foreign national’s I-485 was already filed, it will remain filed but will not be able to be approved until the quota advances to the foreign national’s priority date.

If a foreign national is a “native” of India or mainland China, as described above, and has already filed an I-140 and I-485 applications in the first (extraordinary ability/outstanding researcher/multinational manager) or second (persons holding advanced degrees or having exceptional ability, including national interest waivers) employment-based preferences, then if the application is approved before October 1, 2005, it will not be affected by the new quota limits. If, however, an application remains pending and undecided by October 1, 2005, the case will not be adjudicated until its priority date again becomes current. Fortunately, with a filed application for adjustment of status, the foreign national remains eligible for benefits such as employment and travel authorization documents, and can switch employers as long as the I-140 has been approved and the I-485 application has been pending for over 180 days. The quota limits will increase the amount of time it will take for the foreign national to obtain a decision on the application for adjustment of status, depending on the priority date.

If the immigrant petition is based on a labor certification application, the I-140 and I-485 cannot be filed until the labor certification is approved. If the immigrant petition is not based on a labor certification, it will require extensive documentation which will need to be submitted with the I-140, and may not be able to be prepared by October 1. If the immigrant petition is in preparation, every effort should be made to complete the I-140 and I-485 filing before October 1. If the I-140 and I-485 applications are not filed by October 1, 2005, the I-485 application cannot be filed until the priority date of the I-140 becomes current, which may be years. If the I-485 is not pending, the foreign national must maintain non-immigrant status in order to remain and work in the country until becoming eligible to submit their I-485 application. Foreign nationals holding H-1B status will be permitted to file extensions beyond the normal year limit on H-1B status if, prior to the end of the sixth year, either the labor certification application or immigrant visa petition has been pending for more than one (1) year and is not yet decided, or if the I-140 petition is approved but the priority date is not current.

Will There Be Any Options After October 1, 2005 for Avoiding the Quotas?

There is an important, but limited, exception to these quotas. The “REAL-ID” Act, signed into law by President Bush in May 2005, makes available 50,000 additional immigrant visas for cases filed under Schedule A, Group I (nurses and physical therapists) and Schedule A, Group II (persons of exceptional ability in the sciences, the arts, or the performing arts). Schedule A is a Department of Labor (DOL) designation of occupations where “labor certification” is not required on the ground that the DOL has already made a blanket determination there are no qualified US workers available who are willing to take the job offered, so that US workers will not be adversely affected. The eligibility criteria for Schedule A, Group II are almost identical to the eligibility criteria for the outstanding researcher and extraordinary ability petition.

The REAL-ID Act was meant to benefit hospitals seeking to recruit foreign nurses and eliminate quota backlogs for them. By its terms, however, it makes the extra visas available to all foreign nationals on Schedule A. As with many things in immigration today, there is a one-time quota of 50,000 Schedule A petitions, and we have no way of predicting how soon that quota will be met. Employers with petitions for nurses need to be aware that the quota may be exhausted sooner than expected by foreign nationals filing under “Group II” of Schedule A. Employers and foreign nationals expecting to be able to file as outstanding researchers or persons of extraordinary ability with an employer-sponsored petition may wish to consider filing a Schedule A, Group II petition instead of or in addition to a first preference petition, in order to take advantage of this quota.

If you have any questions regarding how the new quota limits will affect your case, please contact the firm. Please note that in many instances we will have to create new strategies for maintaining status and work authorization due to the implementation of the new quota limits.

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