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State Department Releases First Visa Numbers of FY2009: Plans Slow Start To Accommodate USCIS Processing


Employers and employees pursuing employment-based permanent residence should be aware that the “priority dates” in many employment-based immigrant visa categories have become available again, but that the State Department plans to release numbers more slowly at the beginning of this fiscal year to prevent visas from becoming unavailable in the middle of the year.

This client alert will answer some of the common questions we are getting regarding the first priority dates of Fiscal Year 2009. 
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.
The Department of State controls the number of visas issued each year through 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.  That date is referred to as the “cutoff date” for the month. If, for example, the foreign national’s priority date is September 1, 2003, but the cutoff date listed in the current Visa Bulletin is November of 2002, the foreign national will have to wait for a later month to submit an application for adjustment of status, or to have a pending application for adjustment of status approved.
How Does Adjustment of Status Processing By USCIS Influence The Priority Dates Set by the Department of State?
The Department of State controls the counting of immigrant numbers to make sure that as many of the 140,000 available visas are used each year as possible, but the USCIS actually processes the vast majority (more than 85%) of the employment-based green card applications.  Because USCIS accepts cases when the priority date is current without reserving an immigrant number, but may not process that case for six months to two years or more, USCIS has a large “inventory” of cases it could decide, depending on where the priority date is set by the Department of State.  This “inventory” became much larger in the summer of 2007, when The Department of State moved the priority date forward by a large amount and accepted thousands more adjustment of status applications. 
Whether USCIS actually grants a particular case depends both on immigrant visa number availability but also other factors, such as USCIS workload, security clearances, and interview scheduling.  In addition, the oldest cases may be the most difficult for USCIS to work, as the supporting documentation may need to be updated, the applicant’s circumstances may have changed, or the case may be pending because of a difficult-to-resolve issue that caused a USCIS examiner to defer deciding the case in favor of more easily grantable ones.
Why did the priority date move so far backwards at the beginning of this year?
The State Department seeks to maximize the usage of numbers – ensuring that all 140,000 available employment-based immigrant visas are actually used by USCIS – by setting cutoff dates that control how much of the USCIS’s “inventory” can be decided in a given month. By setting an early cutoff date at the beginning of a fiscal year, the State Department causes USCIS to focus resources on its oldest cases still left in its inventory. By setting a late cutoff date at the end of a fiscal year, the State Department allows USCIS to focus resources on deciding as many cases as possible so that no fewer than 140,000 people can become permanent residents in a given year. 
The State Department announced in the Visa Bulletin for October that the employment-based cutoff dates had been moved forward to allow USCIS to review the largest possible applicant pool to ensure usage of all authorized visas last year. Because USCIS was able to process its caseload very rapidly based on the cutoff dates in place during May to July of 2008, USCIS exhausted the available immigrant visas and several categories became “unavailable” in August and September. To reduce the risk of unavailability later this fiscal year, the State Department has set a very early cutoff date in this October’s visa bulletin to allow the extent of the USCIS backlog of cases with old priority dates to be determined.
How long will it take for an employee to get a green card after he or she applies?
Processing times and priority date movement are extremely difficult to predict, even by the officials of the State Department whose job it is to do so. Last year, the worst-backlogged category (other than unskilled workers, with only 5000 visas available per year), the Employment-based Third Preference for persons born in India, did not move beyond a November 2001 cutoff date. That cutoff date (and this month’s cutoff date of July 1, 2001) would seem to make the processing time over six years.  Unofficially, however, the State Department has estimated that processing time in is currently three to five years in that category, because they expect that fewer labor certifications and immigrant visa petitions were filed in that category after 2001 than were filed before 2001.
Can we expect any improvement?
Congress is currently considering bills that would “recapture” immigrant visa numbers that were not used in past years because of low demand in the early 1990s and delays in USCIS processing in the early 2000s. Such a bill would provide a temporary fix to the problem of unavailable numbers, but any immigration-related bill is difficult to get passed with both parties focused on the upcoming elections.
In the longer term, one of the elements of a comprehensive immigration reform is increased availability of immigrant visas for skilled immigrants and other essential workers. A comprehensive immigration reform package is, however, unlikely to be considered by Congress for another year or more. Even if comprehensive immigration reform cannot pass, Congress may be willing to consider targeted relief for high-skill immigrants at some point in the coming years to prevent employers from losing the talents of employees from other countries.

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