September 15, 2005

Retrogression for Employment Based Immigrant Visa Categories

The U.S. Department of State (DOS) has issued its monthly Visa Bulletin for October 2005, reporting that visa numbers will retrogress significantly for employment based visa categories beginning on October 1, 2005. The availability of a visa number governs a foreign national's ability to complete the U.S. legal permanent residency process and obtain a "green card". This visa number retrogression means that individuals who entered into the residency process on or after the visa cut off dates are unable to complete the U.S. residency process. Specifically, the labor certification or immigrant visa petition must have been filed before the date listed on the visa chart in order for the foreign national to be eligible to complete the residency process. The U.S. government makes only a certain number of immigrant visas available each year and these are allocated among the various immigrant visa categories and the countries from which applicants seek to immigrate. Until recently, visa numbers were available in all employment based categories . However, as a result of more timely processing by the immigration agency, visa numbers are rapidly becoming "over subscribed." Visa numbers have been unavailable for applicants from all countries in the third preference or EB-3 category since July and the DOS predicted that there would be backlogs in many visa categories at the start of the government's new fiscal year on October 1. The visa bulletin shows backlogs in all employment based categories for nationals of India and China, including in the first and second (EB-1 and EB-2 ) preference categories. For an explanation of the visa categories click here. The additional resources and policy initiatives devoted to reducing USCIS backlogs, coupled with the overhaul of the Labor Certification system, will continue to decrease visa availability without Congressional intervention.

The complete visa bulletin can be viewed here.

As a result of this significant shift in the ability of our clients to continue to meet their U.S. staffing objectives, Greenberg Traurig will continue to partner with industry coalitions and key decision makers on Capitol Hill to advocate for relief of the antiquated annual quotas on employment based immigration. A GT Alert, addressing specific client questions will be available shortly to our clients.