Restrain Thy Hope About Employment Based Visa Numbers
USCIS has made an admirable but
confusing effort toward transparency by publishing a
Question and Answer document reflecting
the numbers of pending applicants for employment based adjustment of status to
permanent residence, organized by their year of "priority date." We expect
that clients and interested parties who are the subject of employment based
labor certification applications or visa petitions may read, or read about, this
document and related charts and become confused and perhaps unjustifiably
hopeful about their likely wait for a visa number. We publish this alert
to put the USCIS information into perspective and, sadly, leave readers with a
more realistic impression that it is very difficult to know how long the wait
for an employment based visa number might be. We ask readers not to feel
obliged to take the time to read the USCIS document or this alert about it, and
not to worry if the discussion below seems even more confusing than the USCIS
chart. The bottom line: without congressional action, visa numbers likely
will progress slowly.
Even publishing I-140 petition numbers would not present the full picture, which must include labor certification applications filed with the Department of Labor. Of course, once those are approved the employer must promptly file the I-140 petition to keep the labor certification from expiring, but the filing of the labor certification application marks the beneficiary worker's place in the queue for a visa number, and the Department of Labor is taking longer and longer to decide even the simplest and cleanest application and is taking much longer to decide cases subject to audit, supervised recruitment, or denial and appeal. Workers whose labor certifications are approved will end up ahead (in the visa number queue for the particular employment based preference category) of workers whose first filing (labor certification or I-140) was made later. Thus, pending labor certifications are also invisible in the USCIS charts.
Finally, we are intrigued by the
presence of numbers in the row for third preference cases in the columns for
2008 and 2009. We are not aware of any month since 2007 during which
priority dates have been later than 2006 for this preference for any country. Since a visa number must be available as shown in the State Department's monthly Visa Bulletin for a foreign national to file an application for adjustment, we do not see how such applications could have been legally filed.
Robert C. Divine is the Chairman of the Immigration Group of Baker, Donelson, Bearman, Caldwell, & Berkowitz, P.C., a law firm of 550 lawyers and public policy advisors with offices in 14 cities from Washington, D.C. to New Orleans. Immigration through an employer can be multifaceted, involving multiple government agencies and sophisticated interpretation of highly complex statutes, regulations, and evidence. We daily assist employers and foreign workers achieve their immigration goals through one of the 5 employment-based preferences listed above. Where it is possible, we strive to avoid the burdensome course of labor certification. We work with experts in the alien's field and with the alien herself to craft presentations about EB-1 or national interest waiver eligibility. Where labor certification is the only option, we successfully navigate employers each day through this intricate process. Meanwhile, we help the alien maintain temporary employment authorizing status. Mr. Divine served from July 2004 until November 2006 as Chief Counsel and for a time Acting Director of U.S. Citizenship & Immigration Services (USCIS). He is the author of Immigration Practice, a 1,600 page practical treatise on all aspects of U.S. immigration law that is revised and reprinted annually to reflect the law's constant changes. His practice includes all aspects of U.S. immigration law, representing large and small international and domestic employers, family sponsors, and individual foreign nationals. He has also litigated significant business matters, including class action employment discrimination, contract, commercial, product liability, ERISA benefits,(including RICO, misrepresentation, Consumer Protection Act), and immigration-related criminal matters.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.