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Practice Note
 
Insight To the Retrogression In Employment-Based Visa Availability

Today AILA (American Immigration Lawyers' Association) released the following news article on its website providing valauble insight to the explanation to the visa aailability retrogression.  As the retrogression has affected tens of thousand of people applying or contemplating to apply for the employment-based immigrant visa, our office will join AILA's effort to seek legislative effort to address this problem.

In the article AILA pointed out that the specter of visa availability retrogression has loomed for some time, and the State Department has highlighted the prospect of visa cut-off dates and unavailability in the past. The most recent warning appeared in the September 2005 Visa Bulletin, where the State Department reported that successful backlog reduction efforts by the USCIS and the Department of Labor have resulted in heavy demand for Employment-Based (EB) immigrant visa numbers, and that the supply of available numbers will be exhausted in many categories in FY 2006. The State Department also predicted the establishment of cut-off dates for first- and second-preference cases from China and India.

Basically, as the USCIS and DOL have improved processing and have issued labor certification and visa petition approvals, and the USCIS has approved adjustment of status applications and the DOS has issued visas through consular processing, the number of EB immigrant visas available has been exhausted. Moreover, the AC21 “carryover” visas, numbering well over 100,000, unused in prior years have been nearly completely exhausted, and fewer unused family-based immigrant visas are available for employment-based cases.

The State Department has provided AILA with some key statistical data to inform attorneys and their clients in planning for the future. The reduction in the number of visas available to employment-based immigrant visa applicants is startling:

FY 2005--249,000 (attributable to AC21 carryover and family “spillover”)

FY 2006--156,000 (estimate --the actual number may be as much as 6,000 fewer)

FY 2007--148,000

This represents a 40% reduction in EB numbers from FY 2005 to FY 2006, alone, and a further reduction in 2007.

With the exception of India and China, worldwide EB-2 numbers are expected to remain current at least through the first quarter of fiscal year 2006 (until 12/31/05). However, numbers in the EB-2 category may retrogress during the second quarter of fiscal year 2006. And, there is a possibility that there will be a cut-off date during the third or fourth quarter of fiscal year 2006. As USCIS and DOL clear their EB-2 backlogs, the question of the need for a worldwide EB-2 cut-off may be answered. A similar slow advance is expected in the EB-3 category worldwide, and beginning only in the second quarter of FY 2006.

Because of the exhaustion of AC21 “carryover” visas, the per-country limit for visas in the employment-based categories is similarly reduced. While India used 45,000 EB immigrant visas in all of the employment-based visa categories last year (again due to the extra numbers from AC21 carryover and unused family-based visas), for this year, the per-country limit in all EB categories will only be 10,700, and of that 10,700, the number available per-country in the EB-1, EB-2 and EB-3 categories is projected to only be 9,180, and may be slightly lower.

A “bulge” exists in the number of 245(i) filings that are still working their way through the DOL and the USCIS. The estimate is that there are approximately 345,000 245(i) applications with the DOL. Even assuming that a significant percentage will be denied, withdrawn or abandoned, that leaves perhaps as many as 250,000-275,000 valid applications. Add in the demand for visa numbers for dependents, averaging 2.5 numbers required for each applicant unit, and the advance in cut-off dates in the categories in which 245(i) applications are found is going to stagnate for many years.

We hope to be able to provide further updates after the AILA-State Department Liaison meeting at the end of October. Furthermore, AILA’s advocacy efforts in this area are already underway, and legislative options are being actively discussed. In the meantime, readers are encouraged to engage in efforts to amend the law.


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