On Apr 09 2009 by William A. Stock

May Visa Bulletin: No More EB-3 This Year

Yesterday, the Department of State issued its May Visa Bulletin.  The surprising news was that USCIS has managed to use up all of the visa numbers available in the EB-3 category (professional, skilled and other workers) by granting adjustment of status cases, so that they will have to suspend processing of pending EB-3 cases until October.  (For a more complete explanation of priority dates and how they work, see our Client Alert.)

Fortunately, there is no hint that worldwide first preference, or second preference (except India and China), will become backlogged or run out this year.  More on the EB-3 unavailability after the jump.Here is the Department of State’s explanation:

E. UNAVAILABILITY OF THE EMPLOYMENT THIRD PREFERENCE AND EMPLOYMENT THIRD PREFERENCE “OTHER WORKER” CATEGORIES – The cut-off dates for the Employment Third and Third preference “Other Worker” categories were held and then retrogressed in an effort to bring demand within the average monthly usage targets and the overall annual numerical limits. Despite these efforts, the amount of demand received from Citizenship and Immigration Services Offices for adjustment of status cases with priority dates that were significantly earlier than the established cut-off dates remained extremely high. As a result, these annual limits have been reached and both categories have become “Unavailable.” Visa availability in these categories will resume in October, the first month of the new fiscal year.

For those who incline to see the glass as half full, the good news is that USCIS has managed to adjudicate enough cases that all of the 140,000 employment based immigrant visas will be used this year – in many past years, USCIS processing delays  meant that as many as half of the visas went unused, increasing the backlog.  Another piece of good news was the small phrase that there was demand for cases with significantly earlier priority dates than published – in other words, USCIS is finally getting around to granting some of the cases it has been sitting on since 2001.

For those glass-half-empty types, the fact that USCIS was able to process so many cases with pre-2005 priority dates (the February cutoff) does not bode well for the chances of an EB-3 case with a priority date in, say, early 2007 being granted any time in 2010 or possibly even 2011, unless Congress acts.  Fortunately, skilled worker immigration is considered an essential part of any comprehensive immigration reform package.