The I-485 Inventory Numbers Require Attention
The U.S. Citizenship and Immigration Services (USCIS) released the most recent inventory numbers of employment-based green card applications on its newly-designed website1 in late September of 2009. These statistics are released in a comprehensive manner, categorized by country of chargeability and preference category. Although visa backlog has been a known problem for many years, these well-organized statistics still provide a clear picture as to exactly where the congestions are and where each visa applicant stands in the multilayered queues for immigration.
How is the visa pie dived up?
A quick review of the congressional allocation of employment visa numbers will be helpful for the analysis of these I-485 inventory numbers. Section 201(d)(1) of the Immigration and Nationality Act (INA) allocates an annual minimum of 140,000 visa numbers for employment-based immigrant visas. Although there are 140,000 employment visas available for worldwide usage, each country may not take more than 7% or 25,620 of the annual visa quota.2 Furthermore, each of the five employment visa preference category is subject to the following limits:3
First (Priority Worker): 28.6% of the worldwide quota, or 40,040, plus unused numbers from the fourth and fifth preferences.
Second (Advanced degree professionals or exceptional ability aliens): 28.6% of the worldwide quota, or 40,040, plus unused numbers from first preference.
Third (Skill Workers, Professionals and Other Workers): 28.6% of the worldwide quota, or 40,040, plus any numbers not used by the first and second preferences. "Other Workers" may only receive up to 10,000 of the visa numbers.4
Fourth (Certain Special Immigrants): 7.1% of the worldwide quota or 9,940.
Fifth (Employment Creation): 7.1% of the worldwide quota.
What is the big picture like?
Generally speaking, there are no big surprises regarding the big picture. There are altogether 233,816 I-485 adjustment applications as of August 25, 2009 pending adjudication before the USCIS, of which 4,050 belong to Eb-1, 74,932 to Eb-2, and151,231 to Eb-3. In terms of geographical distribution, 26,170 cases come from China, 111,296 from India, 12,481 from the Philippines, 8,415 from Mexico, and 74,914 from the rest of the world. Visa numbers remind very tight for the most popular preference categories including Eb-2 second preference and Eb-3 third preference. As expected, the countries which have triggered the per-country cap in recent years are suffering a multi-year backlog of visa numbers. These countries - China (Mainland), India, Mexico, and the Philippines - all have their own I-485 inventory tables. While all countries are struggling in the Eb-3 preference category, China and India are also having a huge backlog in the second preference category. The "other countries" are also looking at a multi-year wait in the third preference category, with a dismal priority date of June 1, 2002 in the October 2009 Visa Bulletin.5 The Eb-1 Priority Worker category remains current for all countries.
Putting the numbers in perspective
There are different ways that these inventory numbers can be useful and analyzed. The following are some interesting observations:
How long is the wait?
Very long - that's the short answer. As explained by the USCIS Questions and Answers section, because there are more applications than the available visa numbers, the wait is going to be long. One way to put the visa numbers in context is to determine how many I-485 applications are pending currently because of visa backlogs. The Form I-485 adjustment application is for foreign nationals who are already present in the U.S. to adjust their status to that of lawful permanent residents. Bear in mind that they do not represent all immigrant visa applicants in the universe. About 15% of all applicants are waiting to apply for an immigrant visa before one of the many overseas U.S. consulate offices. If we focus on the I-485 inventory numbers, the following are the number of cases backlogged due to visa unavailability:
Number of I-485 applications pending because of visa qoutas (Illustration 1)
Calculations are based on USCIS data updated as of 8/25/2009 and the Oct. 2009 Visa Bulletin.9 Approximates only. Accuracy not guaranteed.
There are totally 58,337 Eb-2 and 142,848 Eb-3 cases pending worldwide. It will take on average about 1.5 years to process all Eb-2 cases and 3.5 years to process all Eb-3 cases, based on the 40K annual quota for each category, if we ignore country-caps, spillovers, consular-processed cases, etc.
However, the over-subscribed countries will have much longer waiting times. For Eb-3 (skilled workers and bachelor's degree holders), which has the most cases pending, there are currently 142,848 I-485 applications pending from worldwide countries because of visa unavailability. Of these applications, 6,196 are from China, 62,039 from India, 11,189 from the Philippines, 5,508 from Mexico and 61,206 from the rest of the world. The per-country cap imposed by the law means that only a maximum of about 2,800 employment visas can be allocated per country in the EB-3 category every year. Accordingly, if a person files a Eb-3 employment case right now through the labor certification process, the estimated waiting times for each of the cap country are: China (2.2 years), India (22 years), Mexico (2 years), and Philippines (4 years). The Eb-2 category of China and India is not much better. If one is to file a labor application or I-140 petition right now, it could take up to 6.5 years and 14 years respectively for China and India to become current.
What are the factors affecting the availability of visa numbers?
Of course, the visa processing times are not set in stone. Instead, they are moving targets governed by various factors such as spillovers from other categories, overseas cases, recapturing of unused visas, changes in immigration policies and laws. On the one hand, increases in consular-processed cases and special legislation such as renewal of section 245(i) could prolong the waiting time. Spillovers and recapturing of visa numbers would tend to make visas more available. The spillover rule is like this: Unused Eb-4 and Eb-5 visas are to be spilled over to Eb-1; unused Eb-1 to Eb-2; and unused Eb-2 to Eb-3. However, such spillover will only benefit Eb-2 but not Eb-3 until Eb-2 becomes current itself.
Recapturing of visa numbers is another hope for aspiring immigrants. For various reasons, there are always visa numbers went unused in the system. However, the Immigration Act has no overall mechanism to automatically recapture these unused numbers.10 Special legislation is required to do the job. For example, Section 106(d) of the American Competitiveness in the 21st Century Act (AC 21), Pub. L. No. 106-313, was passed to recapture about 100,000 unused visas from FY 1999 and 2000, which provided a significant boost in visa availability starting 2001. Similar legislation has been proposed but none so far was passed into law. For instance, Sens. Menendez, Gillibrand, Kennedy and Schumer introduced "S.1085: The Reuniting Families Act"11 in the Senate on May 20, 2009. If passed, this Act will, among other things, recapture an estimated 400,000 family-sponsored and employment-based visas that were unused between 1992 and 2007, and raise the per-country limit from 7% to 10%.
These inventory numbers are very helpful information for attorneys and applicants alike. One can literally count how many persons are waiting in front of him/her. These statistics indicate that, without changes in the visa system, the wait for an employment visa will remain to be long.
One apparent effect of our overburdened visa system is loss of talent and skilled workers to other countries that offer a quicker and more reasonable way to acquire legal residency. Many of these visa applicants came to the U.S. on a student visa and received an American education. Most of them gained valuable professional working experience from U.S. companies and institutions. Typically married with children, they long for stability in both their finances and immigration status. Their migration to other countries will result in significant economic loss to the U.S. Hence, it will be wise for the U.S. legislators and policy-makers to scrutinize these inventory numbers and come up with a workable solution to tackle the chronic problem of visa backlog.
End Notes1www.USCIS.gov (Follow the "Green Card" link, then choose "I-485 Employment-Based Inventory Statistics (updated August 25, 2009) ( PDF)" under "More Information.")
4Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. The reduction began in FY 2002.
6Section 245(i) of the INA authorizes certain out-of-status foreign nationals to adjust their status to legal residents under some prescribed conditions including payment of a penalty fine of $1000 and filing an immigrant petition (such as a immigrant visa petition and a labor application) on or before April 30, 2001.
8The increase in Eb-2 case numbers can be partially explained by attempts of applicants to fit their profile under the Eb-2 category in the hope that their cases will be allocated a visa number faster.
9The number of pending cases is calculated by adding up all pending I-485s that have a non-current priority date. For example, for China's Eb-3, the cutoff date for Oct. 2009 is Feb. 22, 2002. The total number of pending cases in 2002 (except Jan. & Feb.) is 218. Add that to 1396(2003), 1264(2004), 1024(2005), 1482(2006), 784(2007), 27(2008), 1(2009), we get 6,196.
Paul Szeto, Esq. is a former INS assistant district counsel in New York City. A winner of the AILF's Edward L. Dubroff Memorial Award for outstanding writing in the field of Immigration and Nationality Law in 1994, Paul is now in private practice in Edison, New Jersey, focusing on Immigration and Nationality Law. Paul Szeto can be reached at firstname.lastname@example.org.
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