By James A. Bach, Esq.

Recent quota backlogs ("retrogression") have dashed the hopes of tens of thousands of employment-based immigrants, and frustrated their expectation that they would obtain their green cards soon after their labor certifications were approved. The purpose of this article is to shed some light on the practical effect of the quota retrogression, and to suggest strategies for dealing with it.

In 2001, in response to a spike in the U.S. unemployment rate, the Department of Labor (DOL) virtually stopped processing labor certification applications (the first step for obtaining most employment-based green cards). In addition, a huge number of labor certifications were filed in April of that year, to beat the deadline for 245(i) eligibility (see my March 2001 article). The result was a backlog in the labor certification process that exists to this day. In fact, most of the applications filed in April 2001 are still not adjudicated.

To address this backlog, and to streamline the labor certification process, the DOL implemented two remedies in the last half of 2004. The first was to gather all of the pending labor certifications from all 50 states into two national Backlog Elimination Centers (BEC’s). The second was to implement the PERM labor certification procedure (see my January 2005 article).

Both of these remedies have been successful. The BEC’s are approving old cases at an unprecedented rate. So far, only RIR cases have been approved by the BEC’s, but the DOL expects to have all pre-March 2005 cases adjudicated by September 2007. The PERM procedure also has resulted in numerous approvals, in most cases within just a few months of filing. The labor certification backlog is well on the way to being eliminated.

However, the sudden approval of tens of thousands of labor certifications has created a new backlog. The annual quota of employment-based immigrant visas has been filled in most immigration categories for this year, and well into the future. The most common employment-based immigration category, EB-3, is now backlogged five years. For those born in India and China, the EB-2 and EB-1 categories are also backlogged, and the EB-2 category for those born in the rest of the world may become backlogged soon (see, State Dept. Visa Bulletin). The bulge in the belly of the snake has moved, but it is still there.

There is a good chance that the quota backlog will be eliminated by an act of Congress, perhaps by the end of the year. Currently, the Senate Judiciary Committee is considering a bill entitled the "Comprehensive Immigration Reform Act of 2006", which would eliminate the backlog by 1) doubling the number of employment-based immigrant visas, and 2) exempt from the quota spouses and children of employment-based immigrants.

However, that bill, and others like it, may not be passed, and if passed may not include immigrant visa quota relief. By way of illustration and of caution, a proposal to increase the employment-based quota was passed by the Senate last year, but finally died in December 2005 because of opposition in the House of Representatives.  A lower U.S. unemployment rate may help, but ultimately the political process may defeat any meaningful reform.

It is therefore wise to plan based on what is, rather than what might be. The reality is that the quota backlog may be with us for decades, and wishful thinking alone will not make that reality go away.

As difficult as it is to live with, the immigrant visa quota backlog is actually better than a labor certification backlog in for several reasons.  First, the labor certification is truly the difficult part of the employment-based immigration case.  Once the labor certification is approved, the immigrant is practically assured of getting his or her green card, as long as the certified employment continues until the case is finally concluded.

There may also be opportunities for changing jobs after the labor certification is approved, while still preserving the priority date (i.e., the date the labor certification was filed and the date that determines the employee’s place in the queue). An immigrant visa petition (I-140) can be filed at any time after the labor certification is approved, regardless of the quota backlog. Once the I-140 is approved, the priority date is established, even if the employee moves to another job or even into another employment-based immigration category. (See 8 CFR 204.5(e)). A priority date established by approval of an I-140 in the EB-3 category, could also be used as a priority date for a later EB-2 or EB-1 application.

For example, let’s assume that an engineer who has a Master’s degree obtains a labor certification that supports only an EB-3 petition (because the job does not require a Master’s degree). His labor certification application, filed in June 2003, is finally approved by a BEC. However, because the EB-3 cutoff date is now May 2001 (see Visa Bulletin), he must wait at least two years before he can apply for his green card. Nevertheless, his employer can lock in his priority date by filing the I-140.

Because of the lengthy delay, the engineer has since been promoted to a more senior position that does require a Master’s degree (or five years of post-Bachelor’s degree experience), or has changed employers, and his new job requires a Master’s degree (or five years of post-Bachelor’s degree experience). The employer can file a new labor certification, hopefully get it approved within six months or so using the PERM procedure, and then immediately apply for the green card in the EB-2 category, assuming EB-2 is still current. Even if EB-2 is not current, it will still be faster than EB-3 (for example, there is currently almost a year and a half difference between EB-2 and EB-3 for those born in India and China; see Visa Bulletin). A person who employs this strategy now (and who was not born in India or China) might be able to save five years.

What if the employer who submitted the first I-140 withdraws it before the second one (filed by another employer) is approved? Even in that case, the employee may still be able to use the earlier priority date. Although the regulation states that the priority date is lost if the I-140 is revoked, a 2005 USCIS Memo (see page 6 of the Memo on the USCIS website) states that the priority date is lost only if the I-140 is revoked because of fraud or misrepresentation. Often an employer will withdraw an approved I-140 when the employment ends in order to use the approved labor certification for another employee. The USCIS Memo suggests that even in that case, the original employee can still use the priority date (even though the employee who is substituted into the approved labor certification also gets to use that priority date).

As mentioned above, the EB-2 and EB-3 categories are backlogged for those born in India and China, backlogged in the EB-3 category for those born in other countries, and likely to become backlogged in the EB-2 category for those born in all countries. One alternative is to consider EB-1 classification, which probably will remain current indefinitely for all countries except China and India (and which could save several years of waiting for those born in China and India). There are three subcategories of EB-1:

1. Transferring Managers and Executives. This category is similar to the L-1A nonimmigrant category, and in fact almost everyone in L-1A status is eligible for permanent residence on this basis. The beneficiary must have been a manager with a company subsidiary or office abroad for at least one year. A person in the U.S. in H-1B status or another nonimmigrant status could transfer to the foreign office for a year, and then return to the U.S. in L-1A status and apply immediately for EB-1 classification.
2. Outstanding Researchers and Professors. Often a job can be characterized as a research position, and an R & D position with a private or publicly traded company may support an EB-1 petition.
3. Those With Extraordinary Ability. This category is for those who are one of a small percentage of people who have risen to the very top of their field of endeavor, as evidenced by such things as articles and books written by and about the applicant, or international prizes or awards. Unlike most other employment-based petitions, the Extraordinary Ability category does not require employer sponsorship.

EB-2 classification is normally reserved for those whose jobs require at least a Master’s degree or a Bachelor’s degree followed by five years of experience. However, there is an alternative basis for those of "exceptional ability in the sciences, arts or business." This "exceptional ability" standard is much lower than the "extraordinary ability" required for EB-1, and is defined as "a degree of expertise significantly above that ordinarily encountered." Evidence of recognition for achievements in the field, membership in professional associations, an advanced degree, a high salary, or more than ten years of experience may be submitted in support of an EB-2 petition based on exceptional ability.

A labor certification is normally required for EB-2 classification, but there is an exception for those who can prove that their work is in the national interest of the United States. Like the Extraordinary Ability petition, the National Interest Waiver petition does not require employer sponsorship, and can be signed and submitted by the employee.

EB-2 classification may be available even for a person whose labor certification was approved in the EB-3 category (that is, the minimum requirements for the job, as stated in the labor certification, did not include a Master’s degree or five years of experience). Those who have an approved EB-3 labor certification should consider whether they have "a degree of expertise significantly above that ordinarily encountered"; if so, they may be able to apply for a green card right away, rather than wait five years for the EB-3 quota.

In 2005, Congress allocated an additional 50,000 visas to the "Schedule A" workers in order to address the shortage of nurses. These "Schedule A" workers, who are normally in the EB-3 category, now have a separate quota on the Visa Bulletin which is still current.

Unbeknownst to most people (and perhaps to Congress as well), Schedule A does not only include nurses, but also includes those of extraordinary ability (like the EB-1 category). That means that those who qualify for the EB-1 Extraordinary Ability category also qualify for Schedule A. Since EB-1 is backlogged for those China and India, Schedule A enables people born in those countries to apply immediately for adjustment of status (rather than wait several years for the EB-1 quota to become current).

The quota system gives priority to those who file their labor certifications first, so there is an obvious advantage to filing as soon as possible. Even a person in the slower EB-3 category should not wait in the expectation that he or she may later become eligible for EB-2 or EB-1, since, as explained above, by filing now the priority date may be set for a later EB-2 or EB-1 petition.

Most importantly, however, is that time in H-1B or L-1 status could run out before an application for the green card (I-485) can be filed. Those in H-1B status can continue to extend their status indefinitely as long as they file their labor certification by the end of their 5^th year in H-1B status. Otherwise they must leave the U.S. by the end of their 6^th year. Those in L-1 status can usually change their status to H-1B status and take advantage of indefinite extensions, as long as they also file their labor certifications by the end of their 5^th year.

However, the end of the 5^th year is not an ideal deadline to consider filing the labor certification. For one thing, it takes at least two months to complete the required recruitment prior to filing, so a person who waits until the end of the 5^th year may not be able to file the labor certification application before time runs out. Also, although most labor certifications are approved, many are not, and that possibility should be planned for. If the labor certification is denied, or the employer is unable to complete the necessary recruitment, a second labor certification must be attempted, filed before the end of the 5^th year, and ultimately approved in order to enable extensions past the 6^th year.

Plans to convert temporary working status to green card (i.e., permanent) status should not be based on the hope that Congress will pass a law that will make the conversion faster or easier. Instead, prospective immigrants should plan for the reality of quota retrogression, apply as soon as possible, and seek the assistance of a creative lawyer who can not only guide them through the process, but also find ways to make the long wait as short as possible.  Then, if Congress does provide quota relief, we can all be happily surprised.

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