Retrogression
1. Disaster Hits the EB-3 Category; Could EB-2 Be Next?
Absent Congressional action, employment-based (EB) immigration to the U.S.
is flirting with disaster.
Almost 30 years ago, when I became an immigration attorney, there were only
two EB categories, the 3rd (professional) and the 6th (nonprofessional)
preference categories. For some countries, the 3rd preference category was
backlogged over a dozen years. The trick then was to switch professionals
from the 3rd category into the less-backlogged 6th category. This enabled
hundreds of our clients to obtain green cards in 90 days or less.
The big change came with the passage of the Immigration Act of 1990. The
number of EB categories expanded from two to five (EB-1 Priority Workers, EB-2
Advanced Degreed Professionals, EB-3 Professionals and Other Workers, EB-4
Special Immigrants and EB-5 Investors). The number of persons who could
immigrate under the EB categories more than doubled from 54,000 to 140,000
annually.
The new system contained one major flaw. If less than 140,000 EB workers
and their spouses and children obtained permanent residence in a fiscal year
(October 1 - September 30), the numbers were lost forever, and backlogs
developed in future years.
This was not a problem in the early 1990s as the INS processed most
applications for adjustment of status in 90 days or less. Since most EB
applicants are already working in the U.S. in temporary working status, most
of the processing is done stateside by the INS.
However, with the passage of section 245(i) in 1994, the birth of the World
Wide Web in 1995 and the subsequent dotcom explosion, the H-1B cap was raised
from 65,000 to 115,000 and again to 195,000. Hundreds of thousands of
computer professionals as well as business professionals, healthcare
professionals, teachers, scientists, engineers and accountants all applied for
permanent residence.
INS could not keep up with the ever-increasing demand for green cards, and
multi-year backlogs developed in the EB-3, EB-2 and even the EB-1 category.
In 2000, former President Clinton signed the American Competitiveness in the
21st Century Act (AC-21) which, among other things, allowed over a quarter
of a million "lost" EB adjustment applications to be "recaptured". See
http://shusterman.com/toc-h1b.html#1
AC-21 saved EB immigration, especially after September 11, 2001 when INS
processing of EB adjustment applications ground to a virtual halt. The
combination of AC-21 and the INS slowdown in application processing had a
strange, but predictable, effect on the State Department's monthly Visa
Bulletin. Since so few EB green cards were issued by the INS in 2001-2003
despite hundreds of thousands of additional numbers provided by AC-21, all of
the EB categories became "current". As more and more labor certifications and
I-140 visa petitions were approved, INS was deluged with hundreds of thousands
of EB adjustment applications, most of which remained unadjudicated at Service
Centers.
In 2004, the number of approvals increased dramatically. This resulted in a
three-year "retrogression" in the EB-3 category for persons born in India,
China and the Philippines on January 1, 2005.
In early 2005, the CIS approved over 20,000 EB adjustments monthly. This
number increased to 30,000 per month in the spring. As a result the EB-3
category ran out of numbers and became "unavailable" starting on July 1, 2005,
not just for some persons, but for everyone. This means that if you are in
the EB-3 category, you can not apply for permanent residence until October 1st
at the earliest. If your EB-3 adjustment application is currently pending,
you will not be receiving your green card this summer.
What happens to the EB-3 category on October 1st, the beginning of the new
fiscal year? This is anybody's guess, but we do know that all of the green
cards "recaptured" by AC-21 have already been used up. Just as the H-1B cap
fell from 195,000 to 65,000 last October, the total number of EB green cards
will fall from 249,000 this fiscal year to 140,000 in the coming fiscal year.
And just like the 20,000 extra H-1B visas which were added by Congress this
year (which are only available to persons with advanced degrees from U.S.
universities), Congress added 50,000 extra green cards (which are only
available to persons in the Schedule A category - registered nurses, physical
therapists and persons of exceptional ability). We believe that these extra
visas will be used over a period of three years. In all probability, persons
in the EB-3 category will face multi-year retrogressions. This means that
only people with extremely old EB-3 priority dates will be able to adjust
their status.
Since the CIS can no longer approve EB-3 adjustment applications, Service
Centers have turned their attention to processing adjustment applications in
the EB-2 category (persons of exceptional ability or those whose jobs require
advanced degrees). The predictable result will be that the EB-2 category, at
least for persons born in India and China, will soon retrogress, possibly as
early as August 1st. We will know for sure when the August Visa Bulletin is
released in mid-July.
Source: Shusterman newsletter.
www.shusterman.com
