Over 4.5 Million Are Waiting for Green Cards—Over 100,000 of them are Employment-Based

From GreenbergTraurig 01/12/2016

The Department of State (DOS) recently published its annual report of immigrant visa applicants (2015 Annual Immigrant Visa Report), which tallies up the number of total applicants—including spouses and children—who are waiting for their respective priority date to become current, allowing for them to obtain their green card. The annual report, which totals the number of applicants up to Nov. 1, 2015, does not take into account those applicants who have adjustment of status applications pending with the U.S. Citizenship and Immigration Services (USCIS) as of Nov. 1.

Overall, 2015 saw a three precent increase of total applicants compared against last year, increasing from a total of 4,422,660 for 2014 to 4,556,021 for 2015. This total includes both family-based green cards and employment-based green cards. Employment-based green card applicants only accounted for roughly 100,000 of the 4.5 million. When compared against 2014, the percentage of employment-based applicants waiting to apply for their green cards increased from 90,910 to 100,747—an increase of 10.8 percent.

While a 10.8 percent increase seems like a marginal increase, examining specific categories individually reveals that certain categories—namely Employment First, Second, and Fifth—have grown in popularity with employers and investors. Employment First encompasses green card applications for aliens of extraordinary ability, outstanding researchers, and multi-national managers or executives. From 2014 to 2015, the Employment First category saw an increase of 27.1 percent on the waiting list, from 2,733 to 3,474. Employment Second is reserved for Aliens of Exceptional Ability, which is measured by positions that require a U.S. Master’s degree (or higher), or a Bachelor’s degree and five years of progressive experience.  In 2015, there was an increase of 36.5 percent for Employment Second, with 11,440 on the waiting list as opposed to 8,380 in 2014. Finally, Employment Fifth is reserved for investors and entrepreneurs who invest substantial capital into the U.S. economy, among other requirements. Employment Fifth saw the greatest increase from 2014 to 2015—175.2 percent. The specific wait list numbers, broken down by category, are below:

At first glance, the 140,000 of expected employment-based green card approvals this year seems like it would clear the existing backlog of green card applications of 100,747 left from 2015, but this is not the case because there is a seven percent per-country limit, which visa issuances to any single country, including China and India, cannot exceed. What this looks like for applicants from countries such as China and India is that the wait for green cards will only increase, absent legislative or executive action.

Reviewing the 2015 Annual Immigrant Visa Report by country reveals that India and China remain the world’s largest applicants across each Employment Category, a trend that will likely continue into 2016. For Employment First, China represents more than 25 percent of all applicants, with India coming in a distant second at 9.6 percent.

For Employment Second, India accounts for a two-thirds of all applicants at 66.8 percent; China, on the other hand, accounts for only 7.8 percent, falling just behind South Korea at 8.4 percent.

For Employment Fifth, China leads the applicant-pool with 89.6 percent of all applications.  The next two countries—Hong Kong S.A.R., and Vietnam, only account for 1.4 percent each.

For 2016, approximately 140,000 employment-based green cards are projected to be approved, meaning that the wait will continue for most of the 100,747 who are already waiting for their priority date to become current so that they can obtain their green cards. As the U.S. economy continues to rebound, it is safe to assume that only more applicants, especially from India and China, will continue to apply for employment-based green cards in the higher preference categories—Employment First, Second, and Fifth—where the wait is shorter as compared to Employment Third and Fourth, reserved for skilled workers, and special immigrants, respectively.

USCIS Provides Guidance on Immigrant Visa Availability and Priority Dates

From GreenbergTraurig, 11/17/2015

The Basics of Immigrant Visa Availability

The Immigration and Nationality Act (INA) sets a limit on the number of immigrant visas (i.e. green cards) that may be issued to foreign nationals each year, and the U.S. Department of State (DOS) is the agency that allocates the aforementioned immigrant visas.

There are an unlimited number of immigrant visas available each year for “immediate relatives” of U.S. citizens. “Immediate Relatives” include spouses, unmarried children under the age of 21, parents of U.S. citizens at least 21 years old, and surviving spouses of U.S. citizens if the U.S. citizen spouse filed a petition before his or her death, or the surviving spouse files a petition within two years of the U.S. citizen’s death.

There are approximately 226,000 immigrant visas available each year in the family-sponsored preference categories; employment-based preference category immigrant visas are typically limited to 140,000 visas per year. However, these numbers may increase when immigrant visas from the previous fiscal year’s allotment are not used up. DOS further distributes based on preference category, country of chargeability (usually country of birth) and priority date.

Priority Dates

When the demand for immigrant visas exceeds the number of visas available, a waiting list for immigrant visa availability forms and the priority date is used to determine an individual’s place in the visa queue.

The priority date is located on a prospective immigrant’s Form I-797 Notice of Action for the relevant immigrant visa petition filed on their behalf. For most family-sponsored preference categories, the priority date is the date the Form I-130, Petition for Alien Relative is filed with USCIS. For employment-based preference categories that require a labor certification from the Department of Labor (DOL), the priority date is the date that the labor certification application is filed with the DOL, and the petitioner must file an I-140, Immigrant Petition for Alien Worker with USCIS within 180 days from the date the labor certification is approved. For employment-based preference categories that do not require a DOL labor certification, the priority date is the date the immigrant visa application is filed with USCIS for processing.

Only when a prospective immigrant’s priority date is earlier than the cut-off date shown for a given preference category and country of chargeability in the relevant chart of the monthly Visa Bulletin (also known as when the priority date is “current”) is a visa number available. When an individual’s priority date is current, he or she can take one of the final steps in the process of obtaining lawful permanent residence status in the U.S.

Sometimes, the visa cut-off date will move backwards or “retrogress” to an earlier date, and a priority date that is current one month will no longer be current the next month. This occurs when the number of people who apply for a visa in a given category exceeds the number of available immigrant visas that month.

Adjustment of Status Applications

Individuals present in the U.S. can file a Form I-485, Application to Register Permanent Residence of Adjust Status in connection with a family-sponsored or employment-based immigrant visa petition according to the monthly Visa Bulletin published by DOS. The monthly DOS Visa Bulletin indicates the availability of immigrant visas according to “Application Final Action Dates” and “Dates for Filing Applications.” Usually the “Application Final Action Dates” chart will determine when a prospective immigrant is eligible to file an adjustment of status application with USCIS.

When immigrant visas are currently available based on preference category, country of chargeability and priority date, a prospective immigrant can file his or her Form I-485 adjustment of status application concurrently with an underlying family-sponsored or employment-based immigrant petition.

As part of the adjustment of status application, an applicant must submit a Form I-693, Report of Medical Examination and Vaccination Record. However, the Form I-693 has limited validity and thus many applicants choose to wait to provide the Form I-693 until after receiving a Request for Evidence (RFE) or an immigrant visa interview to avoid having to repeat the immigration medical examination.

Along with a Form I-485 adjustment of status application, the applicant can also apply for a combination Employment Authorization Document (EAD)/Advance Parole card, which serves as a prospective immigrant’s work and travel authorization while the adjustment of status application is pending. This EAD/Advance Parole combo card is valid for one year but can be extended until the Form I-485 is processed.  

Finally, a prospective immigrant can request to have a pending I-485 Application for Adjustment of Status transferred from one immigrant visa eligibility basis to another, as long as the applicant is the beneficiary of a pending or approved visa petition in the new preference category. In order to quality, the priority date must be current in the new category and for the prospective immigrant’s country of chargeability on the date the transfer is filed.

Pending Adjustment of Status Applications and AC21

Under Section 204(j) of the American Competitiveness in the Twenty-First Century Act (AC21), a prospective immigrant with employment-based Form I-485 pending for 180 days or more can seek to “port” to a new job in the same or similar occupational classification before final adjudication of the adjustment of status application.

Under AC21 Section 104(c), the beneficiary of an approved I-40 petition can extend his or her H-1B status beyond the six-year H-1B limitation if a he or she is eligible for lawful permanent resident status but a cannot currently file to adjust status due to lack of current availability of a visa number. To determine whether an individual is eligible for this benefit, USCIS relies on the “Application Final Action Dates” chart of the Visa Bulletin: if the priority date is on or after the cut-off date listed in the chart for the individual’s preference category and country of chargeability, then he or she may be eligible for an H-1B extension under AC21 Section 104(c).

December 2015 Visa Bulletin

December 2015: India EB-2 Advances 10 Months

The December Visa Bulletin brings strong advancement for India EB-2 final action dates but little movement in other categories. USCIS has announced that the “Final Action Dates” chart will determine eligibility to file adjustment of status applications in December and, therefore, eligibility dates for filing adjustment of status have retrogressed in many categories.

India EB-2 advanced 10 months and could move forward another eight in the coming months.

Chart A: Application Final Action Dates for Employment-Based Preference Cases*

	All Charge (ability areas except those listed)	China (mainland born)	India	Mexico	Philippines
EB-1	Current	Current	Current	Current	Current
EB-2	Current	02/01/2012	06/01/2007	Current	Current

Chart B: Dates for Filing Employment-Based Adjustment of Status Applications**

	All Charge (ability areas except those listed)	China (mainland born)	India	Mexico	Philippines
EB-1	Current	Current	Current	Current	Current
EB-2	Current	02/01/2012	06/01/2007	Current	Current

Advanced from previous month

Retrogressed from previous month

*Green  card numbers are available for foreign nationals for whom PERM or I-140 applications were filed prior to the listed date on Chart A.

** Foreign nationals for whom PERM or I-140 applications were filed prior to the listed date on Chart B can file adjustment of status and concurrent applications.

See the entire Visa Bulletin here: http://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

EB-1 Outstanding Professor or Researcher Processing Times

As of January 2015

The processing times listed below are posted by the Department of Labor and United States Citizenship and Immigration Services. This does not reflect Global Human Resources' processing time.

*Eligible for Premium Processing

November 2014 Visa Bulletin

From Fragomen.com, 10/09/2014

Major Retrogression for EB-2 India, EB-3 Advancement for Most Countries

According to the State Department’s November Visa Bulletin, the EB-2 India priority date cut-off will retrogress by more than four years, to February 15, 2005, after significant advancements over the last several months. EB-2 China will advance by just three weeks, to December 8, 2009. 

EB-3 will see substantial advancements for most countries. The EB-3 China priority date will advance nine months, to January 1, 2010. All other countries except India will advance eight months, to June 1, 2012. India will move forward by one week, to November 22, 2003. 

Source: Department of State

November 2014 Priority Date Cut-Offs 
In November 2014, EB immigrant visa priority date cut-offs will be: 


EB-1 Current for all countries. 


EB-2 China: December 8, 2009 India: February 15, 2005 All other countries: Current 


EB-3 Professionals and Skilled Workers China: January 1, 2010 India: November 22, 2003 All other countries: June 1, 2012 


EB-3 Other Workers China: July 22, 2005 India: November 22, 2003 All other countries: June 1, 2012 


EB-5 Current for all countries and subcategories. 


Employment-Based Immigrant Visa Availability in the Coming Months 
The State Department projects that EB-3 will continue to advance significantly for China and most other countries in the next three months. But if EB-3 demand increases, cut-off dates could be retrogressed early next year, particularly for China. 

October 2014 Visa Bulletin

From Fragomen.com, 09/09/2014

EB-3 China and Worldwide Advance; Upcoming EB-2 India Retrogression Likely

According to the State Department’s October Visa Bulletin, the EB-3 subcategory for professionals and skilled workers for China will advance by five months, to April 1, 2009. EB-3 will advance one week, to November 15, 2003, for India, and by six months for all other countries, to October 1, 2011. 

EB-2 China will advance by five weeks, to November 15, 2009. EB-2 India will remain at May 1, 2009 in October, but the State Department warns that retrogression for the category is likely and could occur as early as November due to increased demand. 

October 2014 Priority Date Cut-Offs 

In October 2014, EB immigrant visa priority date cut-offs will be: 

EB-1 Current for all countries. 

EB-2 China: November 15, 2009 
India: May 1, 2009 
All other countries: Current 

EB-3 Professionals and Skilled Workers 
China: April 1, 2009 
India: November 15, 2003 
Philippines: October 1, 2011 
All other countries: October 1, 2011 

EB-3 Other Workers 
China: July 22, 2005 
India: November 15, 2003 
Philippines: October 1, 2011 
All other countries: October 1, 2011 

EB-5 Current for all countries and subcategories. 

August 2014 Visa Bulletin

From Fragomen.com, 07/08/2014

EB-3 China and EB-2 India To Advance

According to the State Department’s August Visa Bulletin, the priority date cut-off for EB-3 China will advance by more than two years, to November 1, 2008, after the dramatic retrogression that took place in June. EB-2 India will move ahead by nearly five months, to January 22, 2009, continuing an advancement that began this month. 

EB-3 Philippines will advance by 17 months, to June 1, 2010, while EB-3 India will move ahead just one week, to November 8, 2003. For all other countries, EB-3 will remain at April 1, 2011. 

The State Department projects that EB-3 China could advance further in September, due to decreasing demand and the application of unused family-based immigrant visas. EB-2 India is not projected to advance further, and in fact could be retrogressed within the next several months, when demand is expected to increase. 

August 2014 Priority Date Cut-Offs 
In August 2014, EB immigrant visa priority date cut-offs will be: 

EB-1 
Current for all countries. 

EB-2 

China: October 8, 2009 
India: January 22, 2009 
All other countries: Current 

EB-3 Professionals and Skilled Workers 
China: November 1, 2008 
India: November 8, 2003 
Philippines: June 1, 2010 
All other countries: April 1, 2011 

EB-3 Other Workers 
China: July 22, 2005 
India: November 8, 2003 
Philippines: June 1, 2010 
All other countries: April 1, 2011 

EB-5 
Current for all countries and subcategories. 

USCIS Issues New Policy on Form I-693, Report of Medical Examination and Vaccination Record

UPDATE
USCIS Public Engagement Division, 06/24/2014

USCIS recently announced new policy changes regarding Form I-693, Report of Medical Examination and Vaccination Record. Starting June 1, 2014, USCIS limits the validity period for all Forms I-693 to one year from the date that USCIS receives the form. As outlined in policy alert PA-2014-005, this updated policy applies to any Form I-693 supporting a benefit application that USCIS adjudicates on or after June 1, 2014.

If you are applying for adjustment of status, you may submit Form I-693 in one of the following ways:

• Submit Form I-693 by mail, together with your Form I-485, Application to Register for Permanent Residence or Adjust Status, to the location specified for your Form I-485 (see “Direct Filing Addresses for Form I-485”).
• Submit Form I-693 by mail, after filing your Form I-485, to the location specified in your most recent communication with USCIS (for example, a Request for Evidence letter from USCIS).
• Submit Form I-693 in person at an interview in a USCIS field office (if an interview is required).

To ensure that your medical examination is still valid at the time USCIS adjudicates your application, you should schedule the medical examination as close as possible to the time you file for adjustment of status, respond to a Request for Evidence, or attend an interview (if applicable).

For additional information, please visit www.uscis.gov/i-693 or see the USCIS Policy Manual Volume 8, Part B, Chapter 4.

______________________

Starting June 1, 2014, USCIS will limit the validity period for all Forms I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS. Applicants must also submit Form I-693 to USCIS within one year of the immigration medical examination. USCIS will also provide additional ways to submit Form I-693. As outlined in policy alert PA-2014-005, this updated policy applies to any Form I-693 supporting a benefit application that USCIS adjudicates on or after June 1, 2014.

USCIS will hold an engagement on June 12, 2014 to address questions about the new policy and provide guidance on filing Form I-693. They have also updated the Form I-693 Web page on their website.

For more information, please visit http://go.usa.gov/8y9d