meauxna

Friday, April 24, 2009
Addressing Employment-Based Visa Wait Times

There have been a lot of comments and questions received from readers about employment-based petitions and related applications for adjustment to lawful permanent residence.

This is a complicated subject, so I want to provide a little background. Becoming a permanent resident based on employment can require a number of steps, including obtaining a labor certification from the Department of Labor, receiving approval on a petition for alien worker from U.S. Citizenship and Immigration Services (USCIS) (Form I-140) and obtaining an immigrant visa from the Department of State or being granted adjustment of status from USCIS. In addition, by law there are numerical limits on the number of people who can immigrate to the U.S. each year in most categories. You can see a more detailed explanation about the employment-based visa application process online.

Some readers have asked about the volume of employment applications and delays that have occurred in employment-based visa petition and adjustment application processing in late 2007 and early 2008. There were a number of factors that affected USCIS' handling of these cases during that time. Employers filed more than 234,000 petitions to sponsor foreign workers (Form I-140) as the Department of Labor cleared a large backlog of labor certification applications and implemented new regulations. Adjustment-of-status application filings also soared to nearly 300,000. We attribute the increase in adjustment application filings to a couple things. First, customers' anticipation of USCIS' filing fee increase in July 2007. Second, a unique opportunity for workers and their families to file adjustment applications based on the visa availability date announced in the July 2007 Immigrant Visa Bulletin. Many of these availability dates have since reverted, creating a backlog of adjustment applications that cannot be adjudicated until a visa becomes available.

A few months ago, a customer indicated his frustration that while he can monitor the Visa Bulletin to see how it moves month to month, he still has no idea how many people are waiting in line with pending adjustment applications or how long it may be before USCIS can process and approve his application. We know this customer is not alone! In response to that customer's request, we are working to make this information available on our Web site.

I understand the importance of becoming a permanent resident. I also recognize workers may rightly want to take advantage of the limited provisions in current law that allow certain applicants to change employers without affecting their ability to adjust status. As a result, USCIS has taken the following steps:
USCIS has increased the emphasis on processing employment-based petitions. Our goal is to complete adjudication on the older I-140 petitions and to process newer petitions within our targeted processing time of four months. We are making progress toward this goal and anticipate reaching this goal by the end of September 2009.
USCIS is issuing employment authorization documents valid for two years, as needed.
USCIS is working with the State Department to make sure we use every available visa number. In 2007, we had more visas available in the family-based categories than were needed, so as permitted by law, we transferred those available family-based visas for use in the employment-based application process.
I recognize that this is a difficult and complex situation and USCIS is working hard to make improvements and to increase transparency in our processes.

Mike Aytes
Acting Deputy Director, USCIS

alcoa

In 2007, we had more visas available in the family-based categories than were needed, so as permitted by law, we transferred those available family-based visas for use in the employment-based application process.

Really? But wouldn't/shouldn't these excess visas automatically go to the FB categories like FB4 (US citizen sponsoring siblings, who typically wait 12-13 years) and thereby reducing their wait times before they consider passing them to the EB categories?

ian-mstm

This was done "as permitted by law"... which leads me to believe that what you're suggesting was not permitted by law.

Ian

Folinskyinla

Hi:

This is true within the family based side of the house. However, if there are unused family based immigrant visa numbers at the end of the year, they are preserved for the following year but on the employment side of the shop. Before this beastie was instituted by the 1990 legislation, those numbers just dropped dead.

Unused numbers are nothing new. Until a few years back, there was a limit of 10,000 asylum adjustments per year -- and the backlog kept increasing and increasing and increasing. Then someone, somehow got their hands on the statistics that former INS was using about half of the numbers each year and letting the other half expire unused! Litigation was started and District Court judges were none too pleased -- before the litigation played out, Congress removed the limitation.

alcoa

It is hard to believe that they let some FB categories let expire and/or transfer to employment based categories, especially given that they mention on the visa bulletin that categories like FB4 and FB3 are given any unused visa numbers from FB1, FB2 etc..I imagine some FB people waiting for 10-12 years will be outraged to learn this..?!

FAMILY-SPONSORED PREFERENCES

First: Unmarried Sons and Daughters of Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents: 114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

Third: Married Sons and Daughters of Citizens: 23,400, plus any numbers not required by first and second preferences.

Fourth: Brothers and Sisters of Adult Citizens: 65,000, plus any numbers not required by first three preferences.

ian-mstm

Are you suggesting that people have some sort of entitlement to a visa?

Ian

md95065

You don't have to believe that you are "entitled" to a visa to be outraged at the way in which USCIS does things.

Folinskyinla

Hi:

It "hard to believe" the equivalent of the UK use of "surely...?"

I find it very easy to believe that DHS would do such things.

tigerbaywarrior

At least we might get some data that can show light at the end of a VERY long tunnel......