March 2005 Newsletter

By James A. Bach, Esq.

An immigrant’s place in the quota queue depends on the date of filing either the immigrant visa petition (I-130 or I-140) or labor certification.  That date is the applicant’s "priority date."  Each month the U.S. State Department issues a "Visa Bulletin" that shows the "cutoff date" (click here to view this month’s Visa Bulletin).  When the priority date is earlier than the cutoff date the green card can be issued. ("C" on the Visa Bulletin stands for "Current," and means that there is no quota backlog in that category).

Over the past five years, there has been no quota backlog in the five employment-based categories (EB-1, EB-2, EB-3, EB-4, and EB-5).  That is, these immigration categories have been "Current," in large part because of the huge backlog in labor certification processing at the Department of Labor.  That will soon change.

There is a total of 140,000 employment-based visas allocated each year, plus unused visas from past years. However, only 70,000 visas are allocated to the two categories that require labor certification, EB-2 and EB-3. That 70,000 is augmented by unused visas from the EB-1, EB-4 and EB-5 categories and unused visas from past years.

Currently there are more than 300,000 labor certification applications pending at the Department of Labor, and the new PERM procedure will inject many other applications into the system.  Many pending labor certifications will be abandoned, but even if only half are approved there will be a demand for over 150,000 new employment-based green cards within the next year or so.  However, the green cards of the employees’ spouses and children are also charged against the same quota (EB-2 or EB-3).  Each employee has an average of two dependents, so there may be an annual demand in excess of 450,000 over the next few years.  That demand far exceeds the 100,000 or so green cards allocated each year to the EB-2 and EB-3 categories.

There are currently approximately 100,000 past unused visas that can be added to the current year’s quota because of incomplete allocation in 1999 and 2000. However, those additional visas may be used up by next year.  After that, backlogs will ensue unless Congress increases the quota.

Already, backlogs have arisen because of the per-country quota, which is imposed in addition to the worldwide quota discussed above.  In January 2005, for the first time in several years, the India, China, and Philippines Third Preference categories became backlogged (three years, to January 1, 2002). And this month, the Other Workers category (for jobs requiring less than two years of education or experience) has become backlogged for all countries to July 1, 2001. See, March Visa Bulletin.  Per-country backlogs were a big problem in the late '90's, and are likely to become so again (see, our March 1999 Newsletter).

The immediate solution appears to be a race for green cards before the quota is oversubscribed.  Those who can get an approved labor certification in 2005 may be able to complete their cases before the quota is filled, and filing a PERM case as soon as possible might result in an early green card (at least for those who are not in the India, China or Philippines Third Preference category).  However, for those who apply next year and beyond, there may still be a waiting list of several years to become a permanent resident based on employment, despite the promise of lightening-fast PERM processing.

See also, Priority Dates Explained (2005 Memo Prepared by Peter Larrabee for dissemination to AILA Member clients; no Copyright claimed).