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Employment Based Categories, Priority Dates and Quota Backlogs

EMPLOYMENT BASED CATEGORIES, PRIORITY DATES AND QUOTA BACKLOGS

There are five distinct preference categories of employment based immigrant (i.e., leading to permanent residency) visas. All categories share the same status of permanent residency, but Congress created different requirements for each category and set differing limits on the number of individuals permitted to become permanent residents in each category. Furthermore, Congress put caps on both the total number of employment based visas available per year (140,000 plus left over family visas), and the percentage of individuals from any one country permitted to become permanent residents in a particular category per year (7% of the total number of immigrant visas available in the family based and employment based preferences, e.g., 26,620 for fiscal year 2008). A person's country for quota purposes (known as "country of chargeability") is determined by his or her place of birth and not by country of citizenship. Applicants who have spouses with different nationalities, however, may be charged under the country of their spouse's birth when it is advantageous to do so.

If there are more individuals eligible to immigrate in each category than there are allotted numbers available, the State Department places these individuals on a waiting list with others born in the same country. An individual's place on the waiting list is determined by the "priority date." The priority is established either by the date the labor certification is filed or, in the instance when no labor certification is needed, when the I-140 visa petition is filed with the Immigration Service.

EMPLOYMENT BASED PREFERENCE CATEGORIES AND QUOTAS

The five employment based preference categories are:

  1. EB-1 : "Aliens of extraordinary ability in Sciences, Arts, Education, Athletics or Business, Outstanding Professors and Researchers, and Multinational Executives and Managers. The major advantage to this preference category is that it does not require an employer to file a labor certification application. This category receives 28.6% of the total number of worldwide employment based immigrant visas available each year, plus any numbers not required for the fourth and fifth preferences described below.
  2. EB-2: Members of the professions holding advanced degrees and aliens of exceptional ability in Business, Science, or Arts. Employers are required to file labor certifications for the vast majority of these candidates, although a few may avoid the labor certification application process if they can prove their presence is in the national interest of the US. This category receives 28.6% of the total number of worldwide employment based immigrant visas available each year, plus any numbers not required by the first preference.
  3. EB-3 : Professionals with relevant Bachelor's degrees, Skilled Workers (e.g., those with positions which require at least 2 years of specialized education, experience or training), and unskilled workers (Other Workers). This category receives 28.6% of the total number of worldwide employment based immigrant visas available each year, plus any numbers not required by the first and second preferences, but not more than 10,000 of which may to be allocated to "Other Workers."
  4. EB-4 : Certain Religious Workers, Ministers, certain international organization employees and their immediate family members, and certain current and former US government employees. This category receives 7.1% of the total number of worldwide employment based immigrant visas available each year, with a 5,000 visa limitation on Religious Workers.
  5. EB-5 : Persons who invest either $500,000 or $1,000,000 (depending on employment statistics for the relevant geographic area) and employ at least ten unrelated US workers through this investment. This category receives 7.1% of the total number of worldwide employment based immigrant visas available each year, not fewer than 3,000 of which are reserved for investors in targeted rural or high-unemployment areas, and 3,000 of which are set aside for investors in certain regional centers.

Please note that the first, second and third preference employment based categories are the most significant for our purposes, and, thus, make up the bulk of our discussion.

CURRENT BACKLOGS

Each month the State Department publishes the Visa Bulletin listing the priority dates that are current for each category and country (available through the Simmons & Ungar LLP website at Visa Processing Times or directly available at: http://travel.state.gov/visa/frvi_bulletin.html). Only those candidates with priority dates earlier than the date listed in the Visa Bulletin for a specific category can file an adjustment of status application (or be scheduled for a consular immigrant visa interview).

Since the movement of the priority dates is determined by the numbers of applications filed previous to one's own application and how quickly those cases are processed—factors which are entirely unknowable—it is impossible to predict how quickly the priority dates will advance. Sometimes the priority dates surge forward by months or years, freeze in place , or even regress backwards. Such ping-pong-like fluctuation of the backlog is normal.

The only way to attempt to project one's priority date is by monitoring the State Department's Visa Bulletin and inferring from the movement of the priority dates over the last several months what might be expected in the forthcoming months. Ultimately, there is no accurate way to estimate when a priority date will become current or how long it will remain current.

Although an individual may have received an approval of the immigrant visa petition (often based on a prior approval of the labor certification application), the third and last stage of the immigration process cannot proceed until his or her priority date becomes current, (when the State Department's Visa Bulletin lists a date that is AFTER the foreign employee's priority date). This final stage is completed in one of two ways depending, in most cases, on whether the employee is living and working in the US or whether he or she is living abroad at the time the visa quota becomes available in the relevant classification.

If the individual is living and working in the US, he or she may file an application, called an application for adjustment of status (AOS), to transition from nonimmigrant visa status (e.g. H or L visa status) to that of an applicant for permanent residence. A person who is residing outside of the US may complete a similar process through the US consulate office in his or her home country ("consular processing").

Should the individual's visa priority date retrogress after the application for adjustment has been filed or, in the case of the individual who is consular processing, just before he or she is scheduled to appear at the consulate post for their visa interview, the process—including the dependent applications for the employee's spouse and minor children—is suspended until the applicant's priority date becomes current, that is falls on or before the date listed in their classification in the Visa Bulletin. An applicant for adjustment of status and the dependent family members, however, can continue to obtain Advance Parole documents for travel as well as Employment Authorization Documents even if the visa priority date has retrogressed after their AOS applications have been filed and their visa priority date had been current.