October 14, 2005

More News on Retrogression - Keeping the Business Community in the Loop

The State Department, in the September 2005 Visa Bulletin, 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 immigrant visa numbers will be exhausted in many categories in FY 2006.

By way of Background…

The Immigration and Nationality Act (INA) sets limits on how many green card visas may be issued each Fiscal Year (October 1 through September 30) in all visa categories. In addition, in the employment-based area where immigration is based on employment and not family relationships or investment, nationals of each country may obtain immigrant visas (i.e., a green card), in different preference categories (i.e., EB-1, EB-2, EB-3). Presently, the worldwide number of employment-based immigrant visas available during a given fiscal year is estimated at 140,000 This figure includes visas issued to principal beneficiaries of I-140 immigrant worker petitions and to their spouses and children. The number of employer based visas can change depending on unused family-based immigrant visas which employer based visas inherit.

The law further provides that no one country may have more than a specific percentage of the total number of visas available annually. If these limits are exceeded in a particular category, for a particular nationality, a waiting list is created and applicants are placed on the list according to the date of their case filing, referred to as the "Priority Date."

There are different employment-based preference categories: Employment-Based First Preference (EB-1); Employment-Based Second Preference (EB-2); Employment-Based Third Preference (EB-3); and Other Workers.

• Employment-Based First Preference (EB-1) includes: (1) Persons with extraordinary ability in the sciences, arts, education, business and athletics (persons who have risen to the top of their profession); (2) Outstanding professors and researchers; and (3) Multi-national executives and managers.

• Employment-Based Second Preference (EB-2) includes: (1) Members of professions holding advanced degrees (Master’s or Ph.D.) (The position must be one that requires a Master’s or Ph.D. to perform the duties – the degree held by the individual does not determine whether or not it is an EB-2, rather it is the company’s job requirements. Additionally, the immigration regulations provide that a job which requires a minimum of a Bachelor’s degree PLUS a five years of progressively responsible experience will be considered equivalent to a Master’s level position and will qualify for EB-2.); and (2) Persons of exceptional ability in the sciences, art or business. Persons of exceptional ability are those who have a degree of expertise above that which is ordinarily expected.

• Employment-Based Third Preference (EB-3) includes: (1) Professionals and skilled workers (bachelor's degree or two years of training). The position must require a minimum of a bachelor degree or two years of training.

• Other Workers include positions that require less than two years of experience.

New Statistical Data on the Reduction in Employment Based Visas

There is some new statistical data now available that employers should be mindful of when strategically planning for the staffing needs of their company. The reduction in the number of visas available to employment-based immigrant visa applicants is both newsworthy and noteworthy. The statistics show that a reduction in employment based immigrant visas in is FY 2005 is predicted to be 249,000. In FY 2006 it is projected to be 156,000. And in FY 2007 it is estimated that the reduction in visas available to employment based visa applicants will total 148,000. What the above statistics represent is a 40% reduction in employment based visa numbers from FY 2005 to FY 2006.

Possible Senate Language Addressing the Recapturing of Unused Visas and the Adjustment of Status...A Quick Snapshot

It is expected that the Senate budget reconciliation language will include provisions that provide needed relief for recapturing unused visa numbers and adjusting status. Mark-up, the process by which congressional committees and subcommittees debate, amend, and rewrite proposed legislation, will likely take place during the week of October 17, 2005.

Recapturing unused visa numbers - The proposed language would provide that the worldwide level of employment-based immigrant visas would include the aggregate of (1) a baseline pool of 140,000 visas; (2) the number of unused family-based immigrant visas from the previous fiscal year; and (3) the number of unused employment-based immigrant visas from all previous fiscal years or 90,000, whichever is less; Moreover, spouses and children would no longer be counted against the overall cap of 140,000.

As for recapturing unused H1B visas, the provisions would also allow for the recapture of unused H-1B numbers going back to October 1, 1991, the effective date of the Immigration Act of 1990 which created the H1B category and cap. It is estimated that there may be as many as 300,000 unused H-1B numbers available, and they would be released at the rate of 60,000 per year once the annual statutory cap of 65,000 is reached. An employer seeking to have a recaptured H-1B visa allocated to a prospective worker would be required to pay an H-1B recapture fee of $500.

Adjustment of status - The proposed language would provide that an individual for whom an I-140 immigrant visa petition with the appropriate fee is filed may file an adjustment of status application even if a visa number is not immediately available. Though the adjustment application can still not be approved until a visa number is available, meaning the beneficiary's priority date is current, this is very beneficial to the applicant because the filing in and of itself entitles the applicant to an employment authorization document (EAD) and an advance parole travel document. For applicants whose I-140 petitions are pending upon enactment of the law, they may pay the appropriate fee and file for adjustment of status even if their priority date is not current.

Any decrease in the availability of employment based visa numbers will adversely affect the business community. GT encourages you to engage in efforts to change the law and explore legislative remedies to help ameliorate the harm that will be experienced by employers and employees.