Immigration Articles

Numerical Limitation and Per Country Cap for Employment based Immigrants Causes Severe Backlog

A group of teachers, originally from India, is meeting with their Senator to see if anything can be done to expedite their permanent residency process. I assisted them with their Labor Certification process 8 years ago. Visa Numbers for the Employment Based Third Preference Category (EB-3) are severely backlogged.

I am sure they are not alone in wanting some help with this issue.

The Visa Bulletin, issued each month by the Department of State shows that the priority date currently being processed (India – EB3) is November 15, 2002 (February 2013).

Why is there a severe backlog in the EB-3 category (and EB-2 as well)?

The Immigration and Nationality Act (INA) sets an annual limit on Employment Based Immigrants. This limit is currently set at 140,000 (Section 201 of the INA).

On its website, the USCIS states, because the demand is higher than the supply of visas for a given year for some categories, a visa queue (waiting list) forms. It does not elaborate on how. Here’s how:
According to the Department of State, at the beginning of each month, the Visa Office (VO) receives a report from each consular post listing totals of documentarily qualified immigrant visa applicants in categories subject to numerical limitation. Cases are grouped by foreign state chargeability/preference/priority date. No names are reported. During the first week of each month, this documentarily qualified demand is tabulated.

So, how is numerical limitation for each category calculated? The American Immigration Lawyer’s Association’s Immigration Policy Council has an excellent fact sheet explaining the breakdown. I have reproduced some parts here to help explain how the numerical limitation for each category is fixed.

Permanent Employment-Based Preference
System 

Preference Category

Eligibility

Yearly Numerical Limit

Total
Employment-Based Immigrants

140,000
for principles and their dependents

“Persons
of extraordinary ability” in the arts, science, education, business, or
athletics; professors and researchers, some multinational executives.

 

40,000*

2

Members
of the professions holding advanced degrees, or persons of exceptional
abilities in the arts, science, or business.

 

40,000**

3

Skilled
shortage workers with at least two years of training or experience,
professionals with college degrees, or “other” workers for unskilled labor
that is not temporary or seasonal.

 

40,000***

 

“Other”
unskilled laborers restricted to 5,000

4

Certain
“special immigrants” including religious workers, employees of U.S. foreign
service posts, former U.S. government employees and other classes of aliens.

 

10,000

5

Persons
will invest $500,000 to $1 million in a job-creating enterprise that employs
at least 10 full time U.S. workers.

 

10,000

*Plus
any unused visas from the 4th and 5th preferences

**Plus
any unused visas from the 1st preference

***Plus
any unused visas the 1st and 2nd preference

In addition to the numerical limits placed upon the various immigration preferences, the INA also places a limit on how many immigrants can come to the United States from any one country. Currently, no group of permanent immigrants (family-based and employment-based) from a single country can exceed 7% of the total amount of people immigrating to the United States in a single year. Certain exceptions are allowed, but are not relevant for this discussion. This is not a quota that is set aside to ensure that certain nationalities make up 7% of immigrants, but rather a limit that is set to prevent any immigrant group from dominating immigration patterns to the United States.

So, countries like India, China, Philippines and Mexico – have higher levels of immigration and so have an annual 7% limit imposed on them: 40,000 * 7% = 2800 employment based visas.

As stated earlier, the Visa Office (VO) is tasked with determining the cut off. The VO subdivides the annual preference and foreign state limitations into monthly allotments. So, numbers for India would be divided thus: 2800/12 = 233 for each month.

So, when the VO receives the usage from the various it is compared each month with the numbers available for the next regular allotment.

Then the determination of how many numbers are available requires consideration of several variables, including: past number use; estimates of future number use and return rates; and estimates of Citizenship and Immigration Service demand based on cut-off date movements. Once this is done, the cut-off dates are established and numbers are allocated to reported applicants in order of their priority dates, the oldest dates first.

Unfortunately, no information, or public documentation is available on how the VO conducts this allocation. Although the Department of State has a document[2] explaining the process, it does not explain how the VO makes the allotment only that it involves the above described variables.

For instance, the India Employment Cut Off Dates from 1992-2012 is available at http://www.travel.state.gov/pdf/EmploymentIndia.pdf

It shows the EB3 category has moved inconsistently at best. There is no way to actually predict the advancement of priority dates although several sites aim to do this by using number crunchers and empirical calculators. See http://www.myprioritydate.com/

Recently though, legislation introduced by Sen. Orrin Hatch and others aims to eliminate the per country cap, thereby easing the severe backlog in employment based immigration. The Immigration Innovation Act of 2013 (I Squared) aims to do the following:

  •  Increase H-1B Cap from 65,000 to 115,000 and introduce sliding scale to increase the CAP
  •  CAP Exempt completely all advanced degree H-1Bs (currently set at 20,000
  •  H-4 Dependents to be granted work authorization
  •  Simplify H-1B portability
  •  Restore visa revalidation
  •  Allow F-1 students to apply for Green Cards directly – remove dual intent limitation
  •  Exempt Certain categories from Green Card Cap
  •  Remove per country CAP on employment based GC – may eventually help EB3/EB2 backlog
  •  Provide STEM graduates incentive in the form Green Cards

Hopefully, it will gather enough support to pass.


[1] Priority Dates for Employment Based Preference Cases

The priority date for an immigrant petition that is based on employment is either:

· The date the immigrant petition (Form I-140)was properly filed with USCIS, or

· The date the labor certification (PERM Form ETA 9089)application was accepted for processing by the Department of Labor (when a labor certification is required)

[2] THE OPERATION OF THE IMMIGRANT NUMERICAL CONTROL SYSTEM

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