1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

US green card waiting times lengthen for many

The US State Department predicts longer green card waiting times for many immigrants. Charlie Oppenheim, chief of the department’s Visa Control and Reporting Division, recently shared his analysis of current trends and future prospects with respect to immigrant visa supply and demand.

EB1—Extraordinary ability; outstanding professors/researchers; multinational managers/executives

The employment-based first preference category is not expected to become currently available again for any country of birth. While people born in most countries are predicted to see movement of up to three months per month, Indian-born can anticipate little if any movement. India and China both have waiting times that are years longer than other countries.

EB2—Advanced degree; exceptional ability

EB2 is expected to remain currently available for all countries of birth, except mainland China and India, but that could change, as it did in the current fiscal year. The demand for Indian-born is so great that the predicted movement is only up to one week per month, while China is predicted to move up to two months per month.

EB3—Professionals; skilled workers; unskilled/other workers

The prediction for EB3 is similar to EB2, but with slow and irregular forward movement likely for China and the Philippines. India is predicted to show little to no movement until January 2020. The more limited supply of the “other workers” category makes it likely that it will not remain currently available for the entire fiscal year.

EB4—Religious workers; special immigrant juveniles

The prediction is for EB4 to remain currently available for most countries of birth. El Salvador, Guatemala and Honduras are likely to see little if any movement because of the large demand in the special immigrant juvenile category. Mexico is predicted to see movement of up to four months.

EB5—Immigrant investors

The EB5 category is expected to remain currently available for most countries of birth; mainland China, Vietnam and India will continue to experience longer waiting periods. Mr. Oppenheim did not predict availability.

Note that the October 2019 Visa Bulletin’s EB5 Regional Center final action date is reported as unavailable because Congress and the administration have not yet extended that program. This program has always been temporary in nature and the government always has extended it, often after expiration. In contrast, traditional EB5 remains available.

Family-based preference categories

There are no limits on US citizens sponsoring their spouse, parents and unmarried children under age 21, so these are not reported in the Visa Bulletin.

For October, the F2A (family second preference) category for green card holders sponsoring their spouse and unmarried children under age 21 is reported as current across all countries of birth. Mr. Oppenheim predicted that demand will increase in late 2019 or early 2020, and the category can expect a Final Action Date by February 2020.

Background

The Department of State’s monthly online Visa Bulletin reports on the current wait times for the US immigrant visas (green cards) that are subject to numerical limits. The date the government receives an immigrant visa petition is considered the priority date. The immigrant’s country of birth is another factor impacting how long it takes to immigrate, although a married couple immigrating together can use either spouse’s country of birth for the entire family.

, , , , , , , , , ,

US green card waiting times lengthen for many

Where’s my visa?

Continued immigrant visa quota backlogs predicted for FY 2019

Longer waiting times for many immigrant visa categories are predicted in fiscal year 2019, according to US State Department Visa Control and Reporting Division Chief Charles Oppenheim, who provided predictions of immigrant visa quota waiting times for fiscal year 2019, which starts on October 1, 2018. Here are highlights from the announcement:

EB1. This is the immigrant visa category for individuals of extraordinary ability, outstanding professors and researchers, and multinational managers and executives. From its creation in 1990 till last summer, this category never experienced waiting periods (with the recent exception of some individuals born in India and mainland China). However, in August and September 2018, the State Department reported a waiting time for all countries of birth. It now predicts the continuation of a waiting period, and not to expect much forward movement before December 2018 or the first quarter of 2019.

EB2. This is the immigrant visa category for professionals with an advanced degree and individuals with exceptional ability. Since its creation in 1990, this category had not experienced waiting periods, with the recent exception of some individuals born in India or mainland China. However, in September 2017, a waiting period was reported for all places of birth. Now, the State Department expects this visa to again become immediately available starting in October 2018 (with the exception of people born in India or mainland China, who will continue to experience lengthy wait times).

EB3. This is the immigrant visa category for professionals and skilled workers. It typically has a wait period of only a few months, except for individuals born in India or mainland China, who have experienced lengthier wait times. While the State Department predicts a wait period for all countries of birth for September 2018, it expects visas in this category to become immediately available again in October 2018 (with the exception of people born in India, mainland China and the Philippines, who will continue to experience lengthy wait times.

EB5. This is the immigrant visa category for immigrant investors. It will remain available to all individuals, regardless of country of birth, but with wait times for people from China and Vietnam. For the latter, visas will be more readily available after October 2018 until March or April 2019, when the wait time will be the same as that of Chinese investors.

The State Department reports immigrant visa waiting times in its monthly Visa Bulletin, which can be found here. The current month and links to past months are available.

, , , , , , ,

Where’s my visa?

Where’s my green card?

Longer waiting times expected for EB-5 immigrant investors

The US Department of State estimates longer waiting periods for EB-5 immigrant investors from the top six participating countries: China, Vietnam, India, Brazil, Taiwan and South Korea.

Waiting periods have long existed for immigrant investors born in mainland China and recently, EB-5 visa applicants from Viet Nam have been facing them. The State Department’s Visa Bulletin for June 2018 shows that EB-5 immigrant visas are only available to people born in China and Vietnam who applied before August 1, 2014. Now, the State Department predicts the likelihood, in the near future, of waiting periods for people born in the other four above-named countries.

The State Department predicts that, for people born in India, EB-5 will remain currently available until 2019 and that EB-5 is likely to remain available without longer waiting times for people born in Brazil, Taiwan and South Korea until 2020.

The US limits the number of immigrant visas and green cards issued each fiscal year. The limits are based on both visa category and country of birth. Each country has potentially the same supply. Only 10,000 EB-5 immigrant visas are available each fiscal year (October 1, 2017, was day one for FY2018). This small allocation is shared by immigrant investors and the family members who immigrate with them.

In addition to the countries mentioned above, the State Department reports increases in demand from Russia, Japan, Colombia and Venezuela.

While each country is entitled to 7 percent of the annual supply (i.e., 700 visas), any unused visas are allocated in order of immigrant petition receipt date, regardless of place of birth. In the past, that resulted in more China-born immigrants. As the demand from other countries increases, expect fewer unused visas and longer waiting periods.

For example, in FY2017 China received 75 percent (or 7,567) of all EB-5 immigrant visas because of unused visas allocated to other countries. Due to increasing demand from other countries, China will likely get fewer visas this year and in the future. The State Department puts the number at 4,500 in FY2018 and 3,500 in FY2019 (or less than half that of FY2017).

The bottom line: It is more important than ever for immigrant investors to file their petitions as early as possible. The date that the government receives the petition is the priority date.

The Visa Bulletin allocates immigrant visas by priority date. The sooner immigrants make their investment and file the petition, the faster they will get resident status. Petitions are processed slowly by the government. Since the priority date is the date that petitions are first received, immigrant investors are already in line during processing.

There are federal legislative and regulatory proposals pending that would at least partially address this problem. But these are only proposals and it is not clear when they will become law, if ever. One thing is certain: Unless and until Congress increases the annual supply of EB-5 visas, increasingly long waiting periods will create hardships on immigrant investors that will likely result in less job creation for American workers.

EB-5 refers to the employment-based, fifth preference immigrant visa classification. EB-5 is the US immigrant investor program that grants immigrant visas and resident status (or green cards) to individuals who make an at-risk investment that creates, directly or indirectly, full-time equivalent jobs for at least 10 American workers. The required dollar amount of investment is currently US$1 million, although US$500,000 is acceptable in targeted employment areas where the government wants to encourage job creation, generally high-unemployment or rural areas.

, , , , , , , ,

Where’s my green card?

Important new regulations for immigrant workers

The US Citizenship and Immigration Services (USCIS) published important new regulations for immigrant workers on November 18, 2016. The regulations become effective January 17, 2017.

Summary

The agency has amended its regulations to provide benefits to those in the employment-based first (EB1), second (EB2) and third (EB3) immigrant visa categories and their employers. The agency’s stated goal is to improve processes and increase certainty for employers seeking to employ and retain such workers, provide greater job flexibility for those workers, and clarify relevant Department of Homeland Security (DHS) policies.

New Rules

There are a number of new regulations, some of which adopt current agency policy and others that are new. The following are some of the most important ones.

For occupations in which a license is required (e.g., doctor, lawyer, etc.), the USCIS will grant the H1B visa for up to one year, if the only obstacle to license issuance is lack of a Social Security number.

For the purpose of counting the number of days spent in the US in H1B visa status towards the normal six-year limit, the USCIS will consider any twenty-four-hour period spent outside the US as one day, regardless of the reason for the absence.

A former H1B visa holder who is no longer in H1B visa status, and regardless of whether he or she is in the US or abroad, may seek an exemption from the normal six-year limit. The foreign worker must be otherwise eligible and the beneficiary of an approved EB1, EB2 or EB3 petition for whom the visa is not current under the quota system as of the date that the H1B petition is filed.

Lengthy adjudication delays of permanent resident status will not support an extension of H1B status beyond the normal six-year limit if the immigrant fails to file for permanent residence or an immigrant visa within one year of the visa becoming current under the quota system. If the visa becomes unavailable again, a new one-year period will be afforded when an immigrant visa again becomes available. The USCIS may also in its discretion excuse failure to timely file upon a showing that the failure was due to circumstances beyond the immigrant’s control.

Credible documentation that an H1B visa worker faced retaliatory action from the sponsoring employer regarding a violation of that employer’s H1B labor condition application obligations may be considered by the USCIS as grounds to grant an extension of H1B stay, or a change of status to another visa classification, notwithstanding the worker’s loss of, or failure to maintain, his or her H1B status.

The definition of “same occupational classification” for purposes of establishing the portability of immigrants to new jobs, has been modified to mean an occupation that resembles in every relevant respect the occupation for which the EB petition was originally granted. “Similar occupational classification” is now defined as an occupation that shares essential qualities or has a marked resemblance or likeness with the original occupation. This guidance is similar to what agency memoranda have already stated.

Employment eligibility verification regulations are amended to authorize employers to accept as proof of employment eligibility Form I-797C and also state that the original employment authorization document is automatically extended for up to 180 days. This is a new rule and will help employers.

Background

The US limits the number of employment-based immigrants annually, by both visa category and country of birth. The quota allocation set in 1990 has never been increased. The annual supply for most categories and countries of birth seems sufficient to prevent lengthy waiting periods; the greatest source of delay are USCIS and Department of Labor (DOL) agency processing times.

The most significant exceptions are for immigrants born in India and mainland China. So many employment-based immigrants born in those two countries are in the queue that waiting periods of for most immigrant visa categories now are many years.

Employer-sponsored EB visas tend to be for specific jobs, at specific work sites, with stated duties and compensation. In general, sponsoring employers and immigrant workers must intend after immigration is complete to work in the same job at the same work site with the same duties for the same (or similar) compensation.

Congress addressed this problem in the American Competitiveness in the 21st Century Act of 2000 (AC21). The USCIS (and its predecessor, the Immigration and Naturalization Service) issued implementing policy guidance, which has been clarified and revised over the years.

The lengthy processing delays were also a problem for H1B professional workers, since there is normally a limit of only six years of status. AC21 provided for extensions beyond the six-year limit.

The EB1 immigrant visa category includes individuals of extraordinary ability, outstanding professors and researchers, and multinational managers and executives. The EB2 category is for professionals with advanced degrees and individuals with exceptional ability. The EB3 category is for professionals and skilled workers, while the EB3W category is for other workers in short supply.

Read the full text of the new regulations here.

, , , , , , , , , , , , , , , ,

Important new regulations for immigrant workers

Global Employment Lawyer – Volume 2, Issue 2 – Fall 2016

Brand-36-Global-Employment-Blog-Banner
What Happens If You Really “Break A Leg!?”

According to the Cambridge Idioms Dictionary, “Break a leg!” is something you say to wish someone good luck, especially before they perform in the theatre. Although there are many theories, the derivation of this term is unclear. The expression reflects a theatrical superstition that wishing a person “good luck” is actually considered bad luck. But is it really bad luck if you “break a leg?”

In this month’s edition, we feature articles from eight different countries Australia, Canada, China, France, Germany, Israel, UK and US. As always, we thank you for you readership.

Read the complete issue

, , , , , , , ,

Global Employment Lawyer – Volume 2, Issue 2 – Fall 2016

Disclosing bribery conduct not an easy decision for US companies

White_Collar_background

July 8, 2016

Recent non-prosecution agreements between the US Securities and Exchange Commission and two companies—Akamai Technologies, Inc. and Nortek, Inc.—in matters involving FCPA books and records violations stemming from conduct that occurred in China, coupled with corresponding decisions by the US Department of Justice to close its investigations into these two matters, provide some limited insight into how to secure similar resolutions of future investigations. However, the questions that remain regarding the benefits of voluntary disclosure of an organization’s misconduct leave things clear as mud.

Should a US company faced with evidence of bribery by an employee or other agent self report in this post-Yates Memorandum/post-FCPA Pilot Program era? Read more in this client alert by Dentons white collar partners Stephen L. Hill, Michelle J. Shapiro and Brian O’Bleness.

Click to read complete article.

 

, , , ,

Disclosing bribery conduct not an easy decision for US companies

US Visa Bulletin Update—EB-1 backlogs predicted

Effective August 1, 2016, the employment-based, first-preference immigrant visa (EB-1) is no longer expected to be immediately available for individuals born in India and China. Availability is predicted by the State Department to retrogress to January 1, 2010, and to not become current again until the new fiscal year begins on October 1, 2016. EB-1 will remain current and immediately available to individuals born in all other countries.

EB-1 includes:

  • EB-1A – Individuals of extraordinary ability
  • EB-1B – Outstanding professors and researchers
  • EB-1C – Multinational executives and managers

EB-1 was created as part of the Immigration Act of 1990. This important visa category has, since its creation, generally been immediately available and without any quota backlog. Employment-based immigration in other visa categories has long been slower for immigrants born in India and China due to the large number of applications filed each year.

Although the backlog is not expected to hit until the last two months of the current fiscal year, it is reasonable to assume that, with the anticipated continued growth of immigration to the US from India and China, it will only worsen in fiscal year 2017. While it is difficult to predict how quickly the wait list will grow, to avoid what may become very lengthy processing delays, your best strategy for securing an early priority date is to file your EB-1 immigrant visa petition as soon as possible.

The EB-2 (for professionals with advanced degrees) and EB-3 (for professionals and skilled workers) visa categories already retrogressed in June for individuals born in China and no forward movement is likely for the rest of the fiscal year, but then resume movement forward in October 2016 – no specific date identified, but I estimate it will be current for at least the first six months of fiscal year 2017 (i.e., until April 2017).

EB-2 worldwide is expected to have a cut-off date in the September Visa Bulletin, but the State Department has not yet predicted a specific date.

, , , , , , ,

US Visa Bulletin Update—EB-1 backlogs predicted

EB-5 China backlog

The United States State Department announced in the May 2015 Visa Bulletin that conditional resident status based on the EB-5 immigrant investor visa is currently available only to individuals born in China whose I-526 immigrant petitions were received on or before May 1, 2013.  EB-5 remains immediately available to immigrants born in all other countries.  Further, this backlog does not impact pending I-526 and I-829 petitions, regardless of country of birth.

The fiscal year begins on October 1.  According to the State Department’s Visa Control and Reporting Division Chief, 2,525 EB-5 visas remain available this fiscal year to people born in all countries other than China.  China has already used 6,819  or 88.56% of the EB-5 allotment for this fiscal year.  Vietnam is the second largest user this year, with a mere 244 EB-5 visas, followed by Taiwan, India and South Korea.  The State Department anticipates that the other countries will not use up all of the remaining EB-5 visas and estimates about 1,000 more EB-5 visas will be released to immigrants from China before the current fiscal year ends on September 30, 2015.

EB-5 immigrants from all countries can continue to file and obtain approval of I-526 immigrant petitions.  In fact, filing the I-526 as early as possible is more important than ever, since it is the I-526 receipt, also known as the priority date, that is ultimately used for quota purposes.  Approximately 10,000 new EB-5 visas will become available on October 1, 2015, when the new fiscal year begins.

For more information, check out the May 2015 Visa Bulletin.

, , , , , ,

EB-5 China backlog