Immigrant Visa Backlogs Impact Employment Based Filings
September 15, 2005

Applicants for U.S. permanent residence based on a job offer have been seeing a new set of conditions in the past year or so. For applicants falling into the employment based 3rd Preference and Unskilled Worker categories, the demand for immigrant visas has been exceeding the annual supply, thereby creating additional waiting periods – not unlike the conditions facing most family based applicants. Please note that the discussion below applies to almost all employment based applicants, including those from the Philippines – but does not address the special conditions impacting Chinese and Indian applicants.

Each fiscal year, by statute, 140,000 immigrant visas are generally made available for employment-based applicants. This number can vary depending on unused visa numbers from other non-employment preference categories. In recent years, the demand for such visas has been commensurate with the supply, thus leading to immediate availability of visas in all preference categories, ranging from 1st Preference, “extraordinary ability” applicants, to the “unskilled worker” applicant. Now, however, due to increased demand in the most popular visa categories, cut-off dates have been established, and applicants now face an undetermined waiting period even following the approval of an application for labor certification (where unavailability of US workers is documented) or I-140 immigrant worker visa petition.

The categories impacted: employment based/ 3rd Preference includes “skilled workers” where at least 2 years of experience is required for the position, and professional positions where a Bachelor’s Degree is required. Examples of the type of jobs affected in this class include mechanics, craftsmen, as well as entry level accounting, engineering and other types of professional positions. REGISTERED NURSES AND PHYSICAL THERAPISTS – normally considered in the Employment Based 3rd Preference – REMAIN UNAFFECTED BY THE VISA SHORTAGE, and visas continue to be immediately available for such workers.

Also impacted by the “oversubscription” of visas, are applicants in the “unskilled worker” category, where less than 2 years of experience is required. This category includes, for example, various domestic worker positions such as housekeepers, babysitters and home healthcare companions. Also included in this category are entry level, non-degreed positions such as certified nursing assistants, or front line production workers, where little or no training is required.

In addition to physical therapists and registered nurses, employment based First and Second Preference applicants also remain unaffected. These categories include international corporate transferees, “aliens of extraordinary ability”, “outstanding researchers and professors”, applicants with advanced degrees, applicants of “exceptional ability” as well as those performing roles deemed to be in the “national interest”. Also unaffected by theses conditions are “special immigrant, religious workers”.

A review of the Visa Bulletin for October 2005 will reveal that a visa cut-off date of January 1, 2001 has been established for the Employment Based, 3rd Preference, and October 1, 2000 for “unskilled workers”. That means final immigrant visa processing (or “adjustment of status” for applicants in the U.S.) is available only to applicants with “priority dates” (i.e. the date the labor certification was initially filed) prior to these cutoff dates. Each month, however, brings new possibilities and new visa cut-off dates, as applicants may find themselves pleased to see many months of progress, or disappointed to see no progression at all, or even retrogression.

Copyright © 2005-2008, By Law Offices of Richard Hanus, Chicago, Illinois