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Severe Backlogs in Immigrant Visas – What’s the Impact?

9 Sep

Even foreign nationals with approved immigrant petitions are subject to per-country quotas before they can apply for permanent residency, often waiting for years or even decades before they are allowed to complete the final step in the permanent residency process and apply for an immigrant visa or “green card.”

Per-Country Quotas

The United States immigration system imposes quotas on the number of immigrant visas available per year based on the country of birth of the applicant, with no more than 7% of the visas in a given year available to applicants born in the same country. Their “place in line” is typically determined by the date of the first filing associated with the permanent residency process. The U.S. Department of State publishes a monthly visa bulletin announcing the place in line, or “priority dates,” for which applications are being accepted during that month based on the type of immigration petition.

Reading the Tea Leaves

The Visa Bulletin to a certain extent is the State Department “reading the tea leaves” similar to how the Federal Reserve makes assessments and adjustments to interest rates and bonds to stabilize the economy, with a certain level of public criticism. The October Visa Bulletin marks the beginning of the fiscal year and should reflect substantial movement forward in the priority dates and increased availability for immigrant visas, based on historical trends which may or may not repeat themselves.

Most Significant Backlogs for Indian-Born Applicants

The most significant development in the September 2019 Visa Bulletin is that EB-1, EB-2, and EB-3 preference categories are completely or practically unavailable for Indian born applicants. This means that the U.S. Department of State underestimated how many Indian born applicants would be applying for immigrant visas, such that the agency had to make them unavailable or effectively unavailable.

Increase in EB-1 Petitions

Petitions have substantially increased under the EB-1 preference category, which includes an overall increase in demand as well as a certain number of upgrades where possible from the EB-2 or EB-3 preference categories for Indian born applicants due to decades-long backlogs. Significant demand for PERM-based immigrant petitions requiring a “test of the job market” under the EB-2 and EB-3 categories created a decades-long backlog for approved petitions for Indian-born beneficiaries to be able to apply for permanent residency. Chinese-born beneficiaries of approved petitions also experience significant backlogs, and a backlog may be steadily growing for applicants from other countries.

Congressional Action to Eliminate Per-Country Quotas Unlikely

The proposed Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) would eliminate per-country quotas for employment-based immigrant applications, which could significantly reduce backlogs for some but may create significant backlogs for other applicants when all applicants are forced into the same “line,” creating a ripple effect across the U.S. immigration system. Until Congress takes action, we are left with the present system and waiting each year around this time to see what October brings.