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December 2005 Newsletter The U.S. Department of State announced this past October the emergence of substantial backlogs in the employment-based preference categories for natives of India and China, and a backlog in the Third Preference Numbers for Professionals and Skilled/Other Workers in the worldwide quota. We expect that these backlogs will be the harbingers of a more general, pervasive backlog that in the relatively near future will affect the worldwide quota for Advanced Degree Professionals (EB-2). This means that physicians, academic personnel, computer professionals, and other positions requiring the attainment of a university degree could face substantial delays – amounting to years – between starting an employment-based immigration case and the time at which the foreign national would be able to attain permanent resident status. The Visa Bulletin of the U.S. Department of State provides a monthly summary of the availability of immigrant visa numbers, and indeed, the backlogs to the numbers oftentimes change with startling rapidity. This Bulletin is released on a monthly basis and can be accessed at the following link: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. Throughout the 1980s, foreign nationals pursuing permanent residence faced major delays owing to the quota. However, a major piece of legislation passed 15 years ago - the Immigration Act of 1990 - substantially increased the employment-based immigrant visa numbers to 140,000/year, a figure then assumed to be more than sufficient to satisfy the demand for permanent immigration based on offers of employment. Indeed, for most of this past period, there have been no or, at most, relatively minor delays owing to the quota, although administrative and bureaucratic delays have plagued our immigration system. Ironically, the very fact that the various federal agencies have now streamlined substantially their processing of employment-based immigration matters has highlighted the artificial and inadequate limits to the employment-based immigrant visa numbers that now threaten to unduly prolong cases for permanent residence. So, what explains the emergence of this backlog? Among the major contributing factors are the following: 1) a strong, growing U.S. economy that is creating expanded job opportunities that cannot be satisfied solely by U.S. workers; 2) the competitive, globalized, interdependent world that increasingly requires the employment of top talent, regardless of citizenship; 3) a shift in career choices and working patterns among U.S. citizens that has resulted in insufficient numbers pursuing careers in such areas as the sciences, engineering disciplines, and high-tech sectors, leaving those fields heavily staffed with foreign nationals; 4) in many fields such as medicine, a pervasive shortage of U.S. providers; and 5) the emergence of the fast-paced PERM program (start date March 28, 2005) and the announced intention by the U.S. Department of Labor to clear up the substantial backlog of pending Labor Certification Applications (currently amounting to 345,000 cases – many of which were filed years ago), meaning that a huge quantity of employer-sponsored immigration cases are hitting the system in a compressed timeframe so as to overwhelm the number of employment-based immigration slots that are available in the U.S. immigration system. This Newsletter continues in our tradition of providing our community of clients and friends with thoughtful, analytical, and substantive pieces that address emerging issues of immigration concern. Here are some thoughts – hopefully, they are “helpful hints” – on how both employers and foreign nationals can best adjust to the current and, more importantly, the emerging future backlog in immigrant visa number availability which, in turn, will likely result in an elongation of the time required to attain permanent residence based on offers of employment and job skills. I. THE EARLY BIRD GETS THE VISA: START AS EARLY AS POSSIBLE An alien’s registration date for an immigrant visa number (more precisely known as the “priority date”) is established upon making the initial filing of an employment-based immigration case, which is usually a Labor Certification Application although in some instances an I-140 Immigrant Visa Petition (i.e., Priority Worker Petitions and National Interest Waiver cases). Given our expectation that the immigrant visa backlogs will noticeably escalate in the future, it makes a great deal of sense to establish as early of a “priority date” as possible so as to position the foreign national advantageously in the quota lines. The foreign national will need to maintain valid, nonimmigrant visa status up until the point that he/she can file an adjustment of status application (I-485), given that the initial filing of a Labor Certification Application and/or I-140 Immigrant Visa Petition does not in and of itself provide lawful status in the United States. It should be noted that an employer can sponsor an alien for permanent residence even prior to actually hiring the foreign national. Therefore, if a foreign national is temporarily unavailable to start work, (examples: students or trainees enrolled in school or physicians who are working through a three-year obligation in a medically underserved area), a prospective employer could nevertheless initiate a case for permanent residence provided that there is a good-faith, mutual expectation that the foreign national will ultimately take up the position being offered. This, at least, provides some limited flexibility in order to initiate an employment-based case for permanent residence and to obtain a favorable “priority date” even prior to the time at which the alien starts to work for the petitioning employer. In particular, physicians who are subject to an obligation of working for three years in medically underserved areas should consider starting their case for permanent residence early in their period of employment so as to enhance the chance that an immigrant visa number will be available upon their fulfillment of their three-year H-1B service obligation. II. ESTABLISH STABLE, LONG-TERM EMPLOYMENT RELATIONSHIPS Even though we have seen substantial speed-ups in the processing of Labor Certification Applications and I-140 Petitions, the immigrant visa backlog situation raises the possibility that a case for permanent residence can drag on for years. Although adjustment portability provides some flexibility, (see point #VII, below) the basic rule for most employment-based cases is that the foreign national needs to remain employed at the sponsoring employer up through the point in time that he/she actually obtains permanent resident status. Given that the vast majority of employment-based cases require the alien to continue to work with the sponsoring employer up until the attainment of permanent residence, it becomes absolutely essential for both the foreign national and his/her employer to have a firm commitment to each other. From the foreign national’s standpoint, this requires a long-term commitment to the employer and to the position being offered; from the employer’s standpoint, this requires a personal/professional interest in the foreign national and an ethos of integrity and fair play so as not to take advantage of the alien employee’s relative employment immobility. The basic rule is that a foreign national is assigned to a quota based on the country of his/her birth, not country of citizenship. This means that many individuals born in the oversubscribed countries of China, India, the Philippines, and Mexico face waiting periods far in excess of the worldwide quota. Under the doctrine of cross-chargeability, it is possible for an alien beneficiary in an employment-based case to essentially borrow the country of birth of his/her spouse. This is known as cross-chargeability, and here is how it works. Suppose a company is sponsoring a native of India as a physician. Since the position requires an advanced degree, the case falls within the Second Preference Classification. At present, the EB-2 visa numbers for India are backed up to July 1, 2000. In contrast, there is absolutely no backlog in the EB-2 numbers from the worldwide quota. Now let us further suppose that the principal alien in this case happens to be married to a native of Pakistan (or any other country falling within the worldwide preference allotment). In this case, even though the employer is sponsoring an employee from India, he/she could instead process for permanent residence under the quota for Pakistan (i.e., the country of the alien’s spouse), which in this case presents a vastly more favorable alternative given that there are no immigrant visa backlogs, at least at present. In short, it is important to consider the country of birth not only of the principal alien, but also of his/her spouse, since the couple essentially can “pick and choose” the more favorable country in order to process for an immigrant visa. The employment-based preference categories are arranged in a hierarchy running from 1 to 3. As a general observation, the lower the number of the preference classification, the shorter is the waiting period for availability of an immigrant visa number. Therefore, as a general observation, the pool of applicants qualifying for EB-1 classification as “aliens of extraordinary ability” is substantially smaller than the pool of applicants for EB-3 Skilled Workers, with the consequence that the backlog waiting lines are normally substantially shorter for EB-1 aliens. Assignment of a preference category lies in large measure on the legitimate, entry-level requirements for the position. Therefore, if the alien holds a Master’s Degree or even a PhD but is working in a position normally staffed by holders of Bachelor’s Degrees, the case would need to be structured as an EB-3 Professional, which, as noted above, is quite susceptible to unduly long backlogs. Given the same scenario, let us say that the ultimate game plan is for the alien eventually to work in a more senior, more responsible position that requires a Master’s Degree. Here, it would be more preferable to file based upon the alien’s prospective position so as to qualify for EB-2 classification. The alien will need to hold this prospective position at the time that he/she actually attains permanent resident status, but this is certainly quite plausible given a real possibility that employment-based cases for permanent residence could take literally years to complete. In other words, it behooves all parties to think long-term to determine the ultimate position that the alien will hold, thereby in selected cases enabling the employer to structure the immigration case in a manner that might well qualify for a more favorable preference classification. In addition, as a result of a Congressional initiative appearing in “The Emergency Supplemental Appropriations Act,” the following three (3) professions have a special and enlarged quota allotment that is not expected to show any backlogs for FY2006 (i.e., the so-called Schedule A submissions): nurses, physical therapists, and aliens of “exceptional ability in the sciences and the arts.” V. H-1B EXTENSION POSSIBILITIES Normally, the H-1B Temporary Worker classification is limited to six years. If this time duration were to be enforced in an inflexible manner, many aliens would simply run out of H-1B status well before being able to file their adjustment of status applications, thereby losing their entitlement to remain in the United States. The U.S. Congress several years ago became quite concerned that many H-1B aliens would exhaust their six-year allotment of H-1B status prior to their attainment of permanent resident status. The initial Congressional concern was motivated by the maddeningly slow processing rates of Labor Certification Applications and Immigrant Visa Petitions, but it applies equally to the current backlogs in the immigrant visa quota lines. In response to these concerns, the Congress passed two provisions that provide H-1B aliens greater flexibility to maintain their H-1B status for the entire time required to obtain an immigrant visa number. The first measure allows an alien to extend his/her period of H-1B status beyond the six-year limit provided that a Labor Certification Application and/or Immigrant Visa Petition was filed more than a year prior to hitting this sixth year limit in H-1B status. In such cases, the foreign national can extend his/her H-1B status in twelve-month increments for as long as it takes in order to obtain an immigrant visa number, which then would authorize the filing of an adjustment of status application or the processing for permanent residence through a U.S. Consulate abroad. The second measure states that once an I-140 Immigrant Visa Petition is approved, an alien already in H-1B status can obtain full three-year extensions, rather than the incremental twelve-month extensions available if their Labor Certification Application or Immigrant Visa Petition is still pending. To be sure, these are imperfect, interim measures. While they allow an alien to preserve H-1B status beyond the normal six-year limit, they still obligate the foreign national to maintain H-1B status, thereby restricting the alien to the sponsoring employer and complicating his/her international travel flexibilities. But at least they provide a very useful bridge so as to enable a foreign national to continue to remain working and resident in the United States while awaiting the availability of an immigrant visa number. VI. H-1B RECAPTURE PROVISIONS As noted above, the normal maximum period of H-1B status is limited to six years, unless the case for permanent residence was commenced and remains pending for at least one year and/or the alien receives an approved I-140 Immigrant Visa Petition. Therefore, in some limited cases, it becomes very important to specifically calculate the period of H-1B status so as to ascertain when the alien will meet his/her sixth year limit. In a very recent immigration case, US Citizenship and Immigration Services (USCIS) has acknowledged that periods of H-1B status occur only when the foreign national is physically present in the United States in H-1B status. This means that any and all periods of foreign travel will not be counted against the six-year limit. (Previously, USCIS required a “meaningful interruption” of the H-1B employment in order to recapture H-1B time.) The implications here in selected cases are immense because they allow an H-1B alien to recapture all time spent abroad, including vacations, long weekends, and various casual departures from the United States. While the burden is certainly on the H-1B alien to document all periods spent abroad, this policy opens up the meaningful possibility of essentially tacking on additional and, at times, substantial periods of additional H-1B status so as to qualify for extensions beyond the six-year limit. VII. ADJUSTMENT PORTABILITY: PAYING ONE’S DUES AND MOVING ON The normal rule in Labor Certification-based immigration cases is that the alien needs to continue to work for the sponsoring employer until acquiring permanent resident status. However, a combination of USCIS processing slow-downs in combination with enhanced security concerns arising out of the 9/11 tragedy resulted in the substantial prolongation in the processing of adjustment of status applications. Whereas roughly ten years ago, legacy INS would process an adjustment of status application in under six months, more recently it has been taking USCIS several years to process I-485 adjustment applications. In order to ameliorate this functional indenture during the lengthy processing of an adjustment application, the Congress passed a provision known as “Adjustment Portability.” Essentially, this provision provides aliens with a very limited right to change employers without losing their entitlement to permanent resident status. All of the following conditions need to occur in order to claim adjustment portability: 1) An approvable I-140 needs to be filed on the alien’s behalf; 2) the alien needs to have filed his/her I-485 adjustment of status application which can be done provided that an immigrant visa number is then available; 3) this I-485 application needs to have been pending for at least 180 days; and 4) the alien needs to take a job with the new employer in the “same or similar occupation”. The key uncertainty, though, is that the I-140 needs to be “approvable”. In short, if the I-140 is either frivolous or seriously deficient, it would not be approvable and therefore any departure from the sponsoring employer would ultimately lead to a denial of permanent resident status. Accordingly, it is our strong recommendation that aliens should not rely upon Adjustment Portability until their original I-140 Immigrant Visa Petition has been approved, even if the I-485 was “concurrently” filed with the I-140 and has been pending for more than 180 days. In a corollary to the Adjustment Portability provisions, there are two specific employment-based filing strategies that do not rely upon employer sponsorship and thereby free the foreign national from an ongoing commitment to any single, specific employer: a Priority Worker Petition as an “alien of extraordinary ability;” and a National Interest Waiver. While both strategies require the alien to work in their field of endeavor so as to show their continued productivity in their area of “extraordinary ability” or national benefit, at least these services are not tied to any specific employer. While the threshold for approving cases filed under these strategies is quite high, they at least provide in selected instances an attractive option that can be pursued in parallel to a Labor Certification-based approach to permanent residence. VIII. RECAPTURING PREVIOUS PRIORITY DATES: BACKDATING CAN OCCUR An alien’s registration (or priority) date for an immigrant visa number is established upon making the initial filing for permanent residence, which is normally the date on which the Labor Certification Application is filed by the sponsoring employer. Once a priority date has been established, the alien is generally required to continue to work for the sponsoring employer at least through the time that adjustment portability comes into play. This tie-in between maintaining a priority date and the alien’s ongoing employment with the sponsoring employer creates a strong reason to follow through on an immigration case based on the originally filed Labor Certification Application. There are, though, two specific instances when a subsequently filed Labor Certification Application can be backdated to the alien’s initial priority date. First, if an employer files a PERM application for an alien employee with a pending Labor Certification filed under the old system (i.e., filed prior to March 28, 2005), then the PERM application can recapture the alien’s initial priority date provided that the position described in the PERM application is identical to the position outlined in the previously filed Labor Certification Application. In such cases, the PERM application needs to describe an identical position using the identical terms and conditions as appearing in the initially filed and pending Labor Certification Application. Second, it is possible to reclaim an initial priority date if an alien has obtained approvals of both a Labor Certification Application and an I-140 Immigration Visa Petition, and then moves over to a second employer which then files a new Labor Certification Application on the alien’s behalf. In such instances, the alien can reclaim the initial priority date, thereby obtaining a substantially better position in the immigrant visa quota line even though the foreign national is now being sponsored for permanent residence by an entirely new employer. Admittedly, this situation arises rather infrequently since it requires the approval of both a Labor Certification Application and an Immigrant Visa Petition with one employer and then a subsequent filing of a new Labor Certification Application with a second employer. But in select instances – particularly triggered by the steadily elongating period required in order to attain permanent residence – it is certainly quite possible that an alien will in good faith have started a case for permanent residence with one employer, and then subsequently change to a new employer sponsor for permanent residence. IX. BEWARE OF CONSULAR PROCESSING After an employer has gone through the initial sponsoring steps for an employment-based immigration case (generally consisting of a Labor Certification Application and I-140 Immigrant Visa Petition), the final step of the process occurs when the foreign national actually applies for permanent resident status. Under law, there are two available options in order to make this final application: 1) filing an adjustment of status application; and 2) processing through a U.S. Consulate abroad for permanent residence (“Consular Processing”). An alien can file an adjustment of status application here in the United States to USCIS once an immigrant visa number has become available, provided that the underlying Labor Certification Application has been approved. Under the “concurrent filing rule”, the I-485 adjustment of status application can even be filed while the I-140 Immigrant Visa Petition is being processed. Although USCIS has undertaken certain steps in order to shorten the processing time of adjustment applications, it can still take many months or even years in order for an adjustment of status application to be approved, and even here, the final approval notice can only be issued if an immigrant visa number is available when the adjustment application comes up for final approval. This means that immigrant visa retrogression could result in major delays (perhaps measured in years) in obtaining the final approval of adjustment of status applications. Given these delays, many foreign nationals have opted to process for permanent residence through a U.S. Consulate abroad. In most instances, the final interview for permanent residence can be scheduled at the U.S. Consulate within six months of the date on which the I-140 Immigrant Visa Petition has been approved. However, given the very real possibility of immigrant visa number retrogression, this Consular Processing option is no longer quite as attractive as it once had been. In order for permanent residence to be granted, an immigrant visa number needs to be available when the Consular Officer is prepared to actually grant permanent resident status. Therefore, the mere scheduling of a Consular interview does not guarantee the issuance of permanent residence, particularly if immigrant visa numbers are not available at the time the Consular post is ready to approve the case. In many instances, the Consulate needs to conduct additional background security checks following the Consular interview, meaning that an alien could be delayed in a foreign country awaiting final adjudication that could then be delayed for an inordinate amount of time awaiting availability of an immigrant visa number. In contrast, aliens with pending adjustment of status applications at least receive the interim benefits of employment cards and reentry permission from trips abroad, which provides some stability if retrogression unduly postpones the final issuance of permanent residence. X. PASCAL’S LAW OF IMMIGRATION: KEEP YOUR OPTIONS FLUID In what is probably good training for life itself, the problems arising from the current and expected backlog in the employment-based immigrant visa numbers counsel for constantly reviewing an immigration case and taking advantage of new developments. It is entirely possible to pursue permanent residence under multiple strategies that can be pursued in parallel. Therefore, let’s say that a foreign national has a currently pending Labor Certification Application and then makes a major scientific achievement, it may be possible to subsequently file under the EB-1 Priority Worker provisions. Or that a foreign national marries a U.S. citizen or has a U.S. citizen child reach the age of majority (i.e., 21 years of age), it would be possible to then adjust to permanent residence on the basis of an Immediate Relative Petition filed by a U.S. citizen anchor relative. Or that the foreign national’s home country dissolves into anarchy accompanied by virulent anti-American sentiment, it may be possible to later file an asylum request. My only point is that strategically, a foreign national is able to pursue alternative strategies even if they were not available at the time that an initial priority date was established. Things change and some changes may have beneficial implications. If so, it is perfectly permissible to re-file an immigration case under an entirely new and more advantageous theory. While an alien may well be able to reside long-term under H-1B status justified by the quota backlogs (see point #V, above), the ultimate attainment of permanent residence can be stymied by the employment-based quota. Therefore, it simply behooves all parties to recurrently figure out if new developments have occurred that may enable the foreign beneficiary of an employment-based case to later reorient the case into an immigrant tract having a much more direct and time-efficient pathway to permanent residence. XI. NEW LEGISLATION: BE AWARE BUT DON’T TRUST UNTIL IT HAPPENS Even as I write this Newsletter, the Congress is considering immigration reform legislation on two different planes: first, major, wide-ranging consideration of Comprehensive Immigration Reform (CIR) which, if enacted, would change certain fundamental provisions of immigration law; and second, much more focused reform measures that would alleviate some of the travails arising from the backlog in the immigrant visa quota lines. In particular, the Senate has passed a provision that would functionally enlarge the immigrant visa numbers so as to clear out the backlog by recapturing various hitherto unused immigrant visa (and H-1B) numbers, and it would also enable to foreign national to file an adjustment application even before an immigrant visa number becomes available. At present, it is very uncertain whether the House of Representatives will approve this initiative or even if these provisions will receive a final vote during this Congressional term. My purpose here is not to outline the full scope of Congressional reform measures, as that endeavor would go beyond the scope of this Newsletter. I would, though, postulate that at some point, the Congress is going to have to adopt ambitious reform legislation to clear up the quota-induced backlog in the H-1B and immigrant visa numbers both in order to enhance this country’s international competitiveness and to restore a sense of integrity and dignity to our immigration system. After all, it is absolutely silly to impose lengthy waiting periods owing to artificially created numerical limitations on foreign nationals who have gone through the Labor Certification Application (which by its nature confirms that the alien’s employment will not harm the U.S. labor force) and immigrant visa processes (confirming the suitability of the employer to sponsor a foreign national for permanent residence). But while I think that immigration (particularly employment-based) reform is virtually inevitable, I do not see strong Congressional commitment at present to this issue and as a consequence, I have growing concerns that we will not see major, far-reaching immigration reform legislation during this term of Congress. It is obviously important to keep abreast of new legislative developments. However, I think it is a serious error to rely on the future passage of reform legislation in order to solve current immigration challenges. Our legislative process does not operate in a linear, foreseeable manner, but is rather subject to a wide variety of unexpected inputs that frequently result in totally unexpected outcomes. Therefore, both in my own legal practice and as a matter of counsel to our clients and community of colleagues, my basic piece of advice is the following: While it is good to be aware of possible Congressional action, deal with the law as it currently exists. As always, please feel free to contact me with any questions or comments you may have on information appearing above or, more broadly, immigration issues of concern to you. Cordially, ROBERT D. ARONSON
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Aronson & Associates, P.A. |