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Is There A Visa In The House? Why AC 21 May Not Help Us After PERM

by Gary Endelman

Gary Endelman Visas are the oxygen of immigration; without them, the process dies. Any immigration case consists of several parts, but all of them point towards your client getting the green card. Only the end result gives meaning to all that came before. As a result of PERM, a torrent of new labor certification approvals will be injected under high pressure directly into the bloodstream of the employment-based immigration system. Will they have anyplace to go? That is the question of the moment whose answer will determine whether PERM will solve our client's problems or merely add to them. Beyond that, there is another, perhaps equally troubling concern: how will our clients stay in the United States while waiting to grab their brass ring? The solution that most immigration lawyers thought would be there, namely section 104(c) of the American Competitiveness in the 21st Century Act ("AC 21") may not turn out to be that much help after all.

Here's the problem in a nutshell. Each year, there are about 110,000 employment-based immigrant visas for us to use among the first three categories; the remaining 30,000 visas are for other workers, religious workers (EB-4) and investors (EB-5) [Ed. corrected 2/15/05]. So, we are really working with 110,000 that breaks down into 40,000 for EB-1; 40,000 for EB-2 + any unused EB-1 (don't hold your breadth!) and 30,000 for EB-3 professionals/skilled workers + any not gobbled up by the first two categories (this excludes leftovers, if any, from the EB-4 and EB-5 categories that do return to EB1, then to EB2, and finally to EB3). Seen any of these lately? Thanks to Section 106(d) of AC 21, unused visa numbers from FY 1999 and 2000 were recaptured of which the Visa Office now tells us there are about 100,000 left. [Ed. corrected 2/15/05]

The DOL tells us there were about 315,000 backlogged cases as of last October, maybe closer to 320,000. An educated guess would jack that up to say 350,000 now. We have all heard about the backlog reduction initiative, right? Suppose for the sake of argument that this campaign wipes out all but 200,000 through the 45 day letters, withdrawals and prayer. After PERM, 150,000 of these babies survive and, given conservative estimates, this amounts to a demand for 3 immigrant visas per labor certification beneficiary. Ignoring new filings, you are looking at an annual appetite for 450,000 employment-based immigrant visas at a time when the annual quota is 110,000. Remember this does not include any green card case for which a labor certification is not required and presumes no additional submissions. EB-3 will soon be backlogged for 9 years; EB-2 will have a 5 year line around the block and, of course, there will be enough EB-1 numbers to use up the annual 40,000 allotment each fiscal year. The recapture pool from past fiscal years will soon be drained bone dry.

This means that, if PERM works, an avalanche will descend upon our unsuspecting immigrant quota numbers in the space of a few visa cycles. What if Congress does not dramatically expand the quota limits? How do our clients stay here while waiting for their number to come up? That brings us to every lawyer's favorite law, AC 21. What can we learn there that will save the day? AC 21 Sec. 104(c) provides that an individual who has maxed out on six years of H-1B status may be eligible for a one-time additional extension if they are the beneficiary of an approved I-140 immigrant visa petition and would be eligible to file for adjustment of status except for per-country visa quota limits. The new lease on H-1B life lasts until the USCIS adjudicates the adjustment of status application. On June 19,2001, Michael A Pearson, Executive Associate Commissioner for the legacy INS' Office of Field Operations, issued a memo that instructed field offices to grant such H-1B extensions in three year increments, thus allowing up to 9 years while waiting for the adjustment case to wind its way through the system. So what's the problem? Even if PERM balloons the immigrant quotas, my guy will still be able to keep his H-1B for enough time. Life is good. Right?

Take a second look at AC 21, Section 104(c). It only applies where the per country quota has been used up. What if an entire preference is gone? What if your client is not from India or China? What if your client is from a country that never uses up its quota? What then? Can you still rely on Section 104(c)? Many of us represent clients from countries that come under the worldwide quota. There is no reason why the literal wording of Section 104(c) would relate to a situation in which all EB-2 or EB-3 numbers are used up but the per-country limits are never breached. That is precisely the problem with PERM. It will induce an exhaustion not of per country visa quotas but of preference or classification availability. Say, your client is from Denmark and there are no EB-2 numbers left. It is hard to see how or why Section 104(c) would even be relevant since the per- country limit of Denmark is not even close to being reached. The reach of AC 21 Section 104(c) is much more modest that most have supposed.

Not to worry, you say. What about AC 21, Section 106? Does this not allow for H-1B extensions past the six year limit in cases of lengthy adjudications? Yes, it does and this might be an answer. But, wait, dear reader. Cast your mind back to November 2, 2002, when President Bush signed into law the Twenty First Century Department of Justice Appropriations Authorization Act (21st Century DOJ Appropriations Act), one section of which- Section 11030- amends AC 21, Section 106. The DOJ Appropriations Act amendment to AC 21 Section 106 removes the six year cap on H-1B status for your client on whose behalf a labor certification or employment-based immigrant petition on Form I-140 has been pending for 365 days or more. As William R Yates, Acting Associated Director for Operations, Bureau of Citizenship and Immigration Services, reminded us in his April 24, 2003 Memorandum, an H-1B 7th year can be granted until DOL decides whether to approve or deny the labor certification; if approved, your clients gets even more time until the CIS adjudicates the I-140. If the I-140 sails through, the H-1B extension goes on until the CIS grants adjustment of status or the State Department issues an immigrant visa at a US Consulate Whew! What a relief. If AC 21 Section 104(c) cannot save us, surely AC 21 Section 106 as modified by the 21st Century DOJ Appropriations Act will.

What if nothing is pending and you still cannot file for adjustment or apply for consular processing? What if the promise of PERM is realized in full measure and DOL just approves labor certs left and right? No lengthy adjudication there to wait for. We can still rely on the CIS to sit on its hands when it comes to the I-140, right? Surely, that delay can keep the H extension going. Maybe not, not if CIS Director Aguirre whips his agency into shape and the goal of six month adjudication is realized by FY 2006. If PERM works, and Aguirre's vision comes to pass, what is the rationale for a 7th H-1B year? Both the labor certification and the I-140 are approved; they are no longer pending. You are now in a situation where the language of AC 21 Section 106 will not sustain continued H-1B extensions. The labor certification and the I-140 are all dressed up with no where to go. The absence of available EB- visa numbers prevents your client from seeking to acquire lawful permanent resident status.

Is there an answer? One has been suggested by legal luminary Peter Larrabee who practices immigration alchemy in San Diego. He posits a theory that, when an entire preference is gone, it is as if every country has hit the per country limit. This builds upon the visa borrowing mechanism that Congress built into Section 104 (a) of AC 21 as a way for India and China to break through their per country backlogs and borrow unused employment visa numbers from everybody else. Despite the literal wording of Section 104 (c), the intent and purpose of this provision was to provide a remedy for a wall imposed by a lack of visas so that such delay should not prejudice a deserving alien who has done all the law asks and now should be permitted to have more H-1B time until she can pass GO and collect $200. Using the Larrabee argument that a total elimination of visa availability for an entire preference is, by definition, the universal invocation of per country limits, it may be possible under this line of reasoning for an H-1B extension under Section 104(c) to survive. Yet, we do not know if this is how State and/or CIS will view the matter once they wake up to the problem. One can only hope that those who decide will listen to the better angels of their nature This is not a sign of PERM's success. "If men were angels," James Madison reminded us long ago in words that seem no less relevant today, " no government would be necessary."

About The Author

Gary Endelman practices immigration law at BP America Inc. The opinions expressed in this column are purely personal and do not represent the views or beliefs of BP America Inc. in any way.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.