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Understanding and Dealing with the Backlog in Visa Numbers This article aims to explain the sudden reappearance of immigrant visa number backlogs, an issue from past years that has resurfaced with a vengeance on the newly published October 2005 “Visa Bulletin.” These visa number backlogs (some quite severe) are going to be with us for the foreseeable future. A clear explanation of what exactly these backlogs mean and how to deal with them is therefore in order. For the past nine months, there has been a lot of discussion and a growing anxiety about the immigrant visa number situation. Particularly for workers from India and China (countries from which we have historically high levels of employment-based immigrants coming to work in America), the distinction between being classified as “EB-2” or “EB-3” on the monthly Visa Bulletin can be a major source of worry and frustration. The issue is not just a personal one for foreign employees. It is an issue for their employers as well because (understandably) foreign employees would rather get their green cards in 2-3 years as opposed to 5-6 years or longer. As a result, the employer is inevitably part of strategizing on whether a foreign employee can be put into a higher “preference” category with a shorter wait instead of into a lower preference category with a longer wait. The most recent Visa Bulletin, published for October 2005, is causing a great deal of worry. On this new Bulletin there are backlogs in the EB-3 preference category worldwide, and extremely severe backlogs for China and India specifically in all three preference categories EB-1, EB-2 and EB-3. Part of the problem with explaining anything in the field of immigration is that using legal jargon is an unavoidable part of working in such a complex area of law. Already in just three paragraphs this article has had to use a bunch of immigration-lawyer lingo just to get far enough into this topic to say what the purposes of this article are. The purposes of this article are to explain (1) what the “preference” categories are in the first place; (2) what the Visa Bulletin is and why it matters so much to foreign workers who are being sponsored for Permanent Residence (a “green card”); (3) why the October Visa Bulletin suddenly shows such severe backlogs in certain categories and for certain countries, worse than any Bulletin in many years; and (4) what employers may be able to do to help ensure their employees face less delay in getting their Permanent Resident status versus what delays are inevitable and must simply be endured because of the facts of a particular case and how the immigration laws apply to that case, in particular the overall limits on employment-based immigration imposed by Congress. First, a little background is required. (1) The Preference Categories – What are They? (b) Permanent Residence Cases Require Different Proof (c) Immigrant Visa Number = a Green Card; Annual Limit is Set by Congress Contrary to the misinformation spread by some in the anti-immigration movement that the United States supposedly has limitless immigration, Congress sets a definite limit on how many immigrant visa numbers are available each year (in other words, how many foreigners can get Permanent Residence in a given year). There are a total of 140,000 immigrant visa numbers each year for all employment-based immigrants[2]. Regardless of how many foreign workers each year apply for Permanent Residence, in the end only 140,000 of them (not counting any dependent family members the sponsored worker has) can actually get Permanent Residence approved in any given year. Employment-based immigrant visa numbers are not given out on a first-come-first-serve basis. Instead, our immigration laws have a system of “preference” categories that immigrant visa numbers are distributed under, based on the kind of employment and the foreign worker’s qualifications. (d) The “Preference” System First Preference – “EB-1” – Priority Workers (Extraordinary Ability, Outstanding Professors/Researchers, & Multinational Executives). Examples include award-winning research scientists, Fortune 500 company executives, and famous performing artists Second Preference – “EB-2” – Advance Degree Professionals & Aliens of Exceptional Ability. Examples include college professors, doctors, and workers in jobs that require at least a Masters degree such as audiologists, certified nurse midwives, and librarians Third Preference – “EB-3” – Professional Workers/Skilled Workers & Unskilled Workers. Examples include public school teachers, software engineers and chartered accountants Fourth Preference – “EB-4” – Religious Workers. Examples include ministers, priests, imams, nuns, monks, and choir directors Fifth Preference – “EB-5” – Employment Creation Investors. These are mainly entrepreneurs with at least $1 million to invest to create at least ten full-time jobs for US workers. The five categories are informally referred to as EB-1, EB-2, EB-3, EB-4 and EB-5. The main point of this “preference” system is that those workers who get into the EB-1 category have a shorter wait for an immigrant visa number than a worker in the EB-2 or EB-3 category. Therefore, a worker in the EB-1 category may be able file his I-485 application for permanent residence[4] sooner than someone in a lower preference category. And the sooner a worker can file his I-485 application, the sooner it can be approved, which is the magic moment when the temporary worker becomes a Permanent Resident. The total 140,000 immigrant visa numbers available each year for employment-based immigrants are divided up among these 5 categories. The first three categories (EB-1, EB-2 and EB-3) are allocated 40,000 visa numbers each[5]. In addition to these 40,000 per category, there are “redistribution provisions”: the EB-1 category gets whichever visas are unused by the EB-4 and EB-5 category[6]. After that redistribution, the EB-2 category gets the remainder of the immigrant visa numbers not used by the EB-1 category[7]. And, finally, the EB-3 category gets the remainder of the immigrant visa numbers (if any) not used by the EB-2 category. (The Fourth and Fifth Preferences each get 10,000 immigrant visa numbers. The Fourth and Fifth Preference categories are not commonly used and thus do not have any backlogs. Therefore, for the sake of simplicity we will leave them out of the remainder of this discussion). (e) Why Doesn’t Everyone Pick the EB-1 Category? The answer is that the EB-1 category is very hard to get into. The only way to get into the EB-1 category is to be either an “Alien of Extraordinary Ability”, an “Outstanding Professor or Researcher”, or a “Multinational Executive or Manager.” For example, pretend Raman is an IT professional from India with a Masters degree and a number of years of work experience as a Software Engineer, both in India and in the United States in H-1B status. To be classified as an “Alien of Extraordinary Ability” in the EB-1 category, he would have to show he is one of the very few people who have risen to the top of the IT field, based on his having received awards, national or international recognition, having been selected to judge the work of his peers, and showing other factors that set him apart from and above most others in the IT field. Very few IT workers have a realistic chance of proving they rise to the level of Extraordinary Ability as it is defined in the immigration regulations. Most IT workers and other professional workers such as circuit engineers, teachers, physicians, accountants and others holding H-1B status (meaning they have at least a Bachelor degree or the equivalent) are going to qualify for either the EB-2 or EB-3 category if anything, but never the EB-1 category. (f) EB-2 and EB-3 – For Those Hard Workers Who Do Not Have Nobel Prizes However, the October 2005 Visa Bulletin now has a backlog for all EB-3 workers regardless of country. Getting classified EB-2 is therefore of potential interest to all foreign workers seeking to become Permanent Residents sooner rather than later. As noted above, the EB-2 category is reserved mainly for those who are “Advance Degree Professionals.” In immigration parlance “advance degree” means any degree above a Bachelor degree. This means degrees such as Master of Arts/Master of Science, Doctor of Philosophy (Ph. D.), Medical Doctor (MD)/Doctor of Osteopathy (DO), Juris Doctor (JD), and Master of Law (LLM). By contrast, the EB-3 category is reserved mainly for those who are “professionals” or “skilled” workers. In immigration parlance, “professional” means jobs that require a Bachelor degree and perhaps some work experience, but do not require a Masters or higher degree. “Skilled” means any job that requires at least two years of work experience (but no actual Bachelor degree), such as the position of construction supervisor [9]. (g) How Can You Get Into the EB-2 Category Instead of Being Resigned to Only the EB-3 Category? In some professional fields, the minimum educational qualification for a job is rigidly defined. Public schools require all teachers have at least a Bachelor degree. But a Masters degree is not required. If an individual teacher happens to hold a Masters degree herself, she might be paid more than other teachers. But that does not mean her job itself actually requires any higher education beyond a Bachelor degree. So if she is a foreign worker looking to be sponsored for Permanent Residence based on her job as a teacher, she can only be classified EB-3 and not EB-2 because her job only requires a Bachelor degree. In other fields and particularly in the private sector, there is often more flexibility on what minimum education a particular job can require. For an entry-level Circuit Design Engineer, an employer might not regularly require more than a Bachelor degree in Electrical Engineering (and commensurate with that education requirement might only pay $55,000 to $60,000 per year in the Twin Cities metro area, just for example). But for the position of Senior Circuit Design Engineer an employer might well require a Masters degree (or equivalent experience, and with that requirement might offer a substantially higher salary in the range of $75,000 to $90,000 or even more). In section (4) of this article below, the possibilities of requiring a Masters degree for certain jobs is discussed in greater detail. (2) The Visa Bulletin – What is It? However, in the area of issuing visas (both temporary visa stamps like H-1B visas and “immigrant visa” stamps at the US Embassies and Consulates around the world), the US Department of State (DOS) plays the leading role. The task of keeping count of how many immigrant visa numbers are available each quarter of each year is the responsibility of DOS, not USCIS [11]. The Department of State must apply extremely complex numerical formulas each month to calculate how many immigrant visa numbers should be made available the following month. The formulas involve DOS making educated guesses of how many visas are going to be issued throughout the course of a given year [12]. The complexity of DOS’ task is compounded by the fact that two different federal agencies are authorized to use immigrant visa numbers to grant Permanent Resident status to as many foreign workers who are eligible, up to the 140,000 annual limit. DOS itself uses up immigrant visa numbers by issuing immigrant visa stamps overseas and at the same time USCIS uses up immigrant visa numbers at its own independent pace by approving I-485 Applications for Permanent Residence inside the United States. The way that DOS regulates the usage of each year’s immigrant visa numbers is through publication of the monthly “Visa Bulletin.” Each Bulletin is usually released during the middle of the month prior to when the Bulletin goes into effect. For instance, the October 2005 Visa Bulletin was released on September 12, 2005 (giving a mere two weeks to react to the bad news it brings to Chinese and Indian EB-2 workers in particular). The Bulletins are published on the DOS website and can also be received by email each month when they are published. (b) Why are China, India, the Philippines and Mexico treated differently? Ironically, the reason that China, India, the Philippines and Mexico have longer waiting periods in certain preference categories is precisely because our immigration laws are written so as to not discriminate in how immigrant visa numbers are given out to different nationalities. Starting with the “Chinese Exclusion Act” in 1882 and continuing into the 20th Century with the creation of the “Asiatic Barred Zone”, for decades Asian immigration into the United States was severely curtailed, in contrast to favoring of immigration from Northern/Western Europe [13]. But the Immigration Act of 1965 changed that by ending the national origins quota system [14]. As a result, our present immigration laws strictly prohibit discrimination in the issuance of immigrant visa numbers based on country of birth or nationality [15]. What our immigration laws do instead is treat all countries equally [16]. Each year, there are as many immigrant visa numbers made available to Pakistani nationals as there are made available to Indian nationals. As many are made available to Taiwanese nationals as to mainland-Chinese nationals. In one sense, that is fair; under the Congressionally-mandated formula, that means as many as 9,800 Belarusians have a chance to get Permanent Residence as do 9,800 Chinese. As many Bolivians get a chance as Indians. But in another sense, treating each country equally, allotting no more than 9,800 visas to each country is unfair, because some countries are much more populous than others. Belarus and Bolivia are not sending as many highly-skilled professional workers to the United States each year as China and India are. And since employment-based immigrants are granted Permanent Residence because of their skills and the fact that they fill a specific labor need in our economy, it should not matter what country they come from. China and India are the two most populous countries in the world [17]. Each have significant middle classes that produce many highly educated professionals in the sciences and engineering. There is no nationality-based limit when it comes to issuance of temporary H-1B visas. As a result for many years tens of thousands of Indian and Chinese professional workers have come to the United States, many tens of thousands more workers than could ever hope to receive one of the only 9,800 [18] visas available to natives of those two countries. The result is plainly shown on the October 2005 Visa Bulletin— whereas a Canadian physician with an approved Labor Certification and pending I-140 will still be able to file his I-485 during the month of October, a physician with identical facts but who was born in India might have to wait four to five years before being able to file his I-485. (c) Why does the Visa Bulletin Matter So Much? The recent Visa Bulletins throughout 2005 and especially the October 2005 Bulletin are telling USCIS “you are approving too many I-485s all at once— slow down!” But perhaps even more important to many foreign workers in the short term than getting an I-485 approved, the Visa Bulletin is what decides when they can even file their I-485 application. This is because of a long-standing rule in the immigration laws that requires the Visa Bulletin show a worker has a visa number available to her at the moment of I-485 filing and not just at the moment of approval [19]. Getting the I-485 filed is significant moment for
foreign workers. If a foreign worker in H-1B status has a wife in
H-4 status (which does not permit her to work), filing her I-485
along with his means that she will finally be able to get a work
authorization card that allows her to get a Social Security Number
for the first time and allows her to contribute to the family’s
income at last. And filing an I-485 also brings the “portability”
rule into play, giving the worker potential protection in the event
of lay-off. Before the portability rule was created in October 2000
[20], a lay-off that occurred prior to I-485 approval
used to mean the end to the entire years-long Permanent Residence
case (and either starting over at a new company or else leaving
the United States due to exhaustion of the six-year limit on H-1B
status). With the portability rule, a worker has the chance of rescuing
his pending I-485 case and still getting Permanent Residence if
he can find a “same or similar” job at a new company.
But the portability rule never even comes into play if the worker
never gets to file an I-485 in the first place and is laid-off during
the many years wait (after Labor Certification approval/I-140 filing/approval)
for a visa number to become available [21]. (3) The October 2005 Visa Bulletin – Cold Hard Reality Sets In Thus during the past 3+ years, it was easy to be lulled into a feeling that priority dates did not matter any more, that backlogs in immigrant visa number availability had been consigned to the dustbin of history and that the Visa Bulletin was something only for family-based immigrants to worry about. It was easy to be lulled into a feeling that the old distinctions between EB-2 and EB-3, between India and China and all other countries, were now nothing more than quaint historic anomalies. After all, the gradual disappearance of backlogs on the Visa Bulletin for employment-based cases appeared to coincide precisely with the enactment of provisions for redistribution of unused immigrant visa numbers as part of the American Competitiveness in the Twenty-First Century Act (“AC21”) [22]. It was easy to believe that AC21 had fixed the problem created by issuing H-1B visas to large numbers of Chinese and Indian workers without per-country limits while restricting immigrant visa numbers to the same 9,800 limit per country, to believe that visa number backlogs were gone forever. (b) The Chickens Come Home to Roost If for the past four or five years INS/USCIS had each year approved employment-based I-485s at a steady rate, then for the past four or five years we would have had Visa Bulletins with always some amount of backlog showing on them. But it would not be such severe backlogs appearing all at once as just happened on the October 2005 Bulletin. There would have been a more orderly, steady advancement of the cut-off dates. Because USCIS allowed its backlog of employment-based I-485s to become so enormous and now is rapidly clearing it up, an EB-3 Russian Software Engineer who a few months ago could anticipate being able to file a concurrent 140/485 once his pending PERM Labor Certification is approved now suddenly with little warning faces a wait of another three to four years before being able to file his I-485. (4) Beating the Backlogs – What (If Anything) Can be Done to Shorten The Wait So if the recurrence of backlogs on the Visa Bulletin is primarily the fault of USCIS and now must be accepted as a fact of life, then the next natural question is what if anything can be done in particular worker’s cases to try and shorten their wait within the bounds of existing laws. (a) Do You Love Your Mother (Country)? Regardless of what country a foreign worker was born in, both past Visa Bulletins and especially the current October 2005 Visa Bulletin illustrate that it is always better to be classified EB-2 instead of EB-3. This is because for the first time in recent memory, there is a backlog in EB-3 visa numbers for all countries, for Canada and Italy as much as for China and India. As discussed in Section (2)(e) above, while it would be great if every foreign worker being sponsored for Permanent Residence could be classified as an EB-1 Priority Worker, the reality is that most foreign employees will not be able to qualify in the EB-1 category. And therefore the main thing that can be done to try and reduce the waiting time for I-485 filing/approval of Permanent Residence is to qualify the worker in the EB-2 category if possible. (b) Deciding on EB-2 versus EB-3 Qualifying any worker in the EB-2 category requires a multi-step analysis that is specific to the facts of each case. With the amount of expense that goes into a PERM case (both time and effort as well as advertising costs), before deciding whether to try and make an EB-2 case a number of factors must be considered, e.g., (1) whether the worker actually has a Masters degree (with greater concerns if the Masters degree is a foreign degree not clearly equivalent to a US-earned Masters degree, or if the worker lacks any Masters degree and plans to rely on a Bachelor degree plus five years’ progressive work experience); (2) whether the employer normally requires a Masters degree for this worker’s position; (3) whether requiring a Masters degree plus possibly a number of years of work experience results in a prevailing wage determination that is in excess of what the employer can commit to paying the worker at the time Permanent Residence is granted; and (4) last but most important, whether requiring a Masters degree plus possibly a number of years of work experience will exceed the level of education and experience that DOL considers normal for this occupation, and if so whether or not there is “business necessity” for such “excessive” requirements, such that a PERM Labor Certification can likely be approved. Without some Labor Certification approval there is no green card case, whether EB-2 or EB-3. In short, constructing a solid EB-2 case is anything but simple. In every case, it requires close collaboration between the sponsoring employer, the foreign employee and the immigration attorneys to explore the EB-2 option thoroughly and completely before deciding to go with the EB-2 option or else settling for the EB-3 option. Deciding between EB-2 and EB-3 is a decision that is going to chart what path the individual’s case takes for many years to come. * Located in Minneapolis, MN, the law
firm of Ingber & Aronson PA offers a full range of immigration
counseling services to clients throughout the United States and
worldwide. It has been recognized for its excellence in the field
and serves as counsel to corporate employers, private individuals,
other lawyers, as well as private and public institutions. Dinesh
Shenoy has been an Associate Attorney with the firm for more than
five years and is a regular speaker on employment based immigration
issues. In 2003 he won the AILA Mentor Award for “Outstanding
Efforts and Excellent Counsel to Immigration Attorneys By Providing
Mentoring Assistance.” |
Aronson & Associates, P.A. |