Examination of EB-2 Visa Demand Vis-a-Vis H.R. 3012 (Part 3)

By Alan Lee, Esq.

This is the third of three parts of the article which was published in the most respected immigration publication, Interpreter Releases, on March 5, 2012. The question is whether H.R. 3012, the bill to open the entire worldwide advanced degree (EB-2) quota to natives of China and India so that they do not have to wait so long to immigrate, is actually necessary in light of the huge forward leap of the EB-2 category by almost four years since March 2011. Part 2 attempted to look into the supply of EB-2 visa numbers in the future and the number of cases that will require EB-2 numbers through conversations with the Chief of the Immigrant Control and Reporting Division of the Department of State. There was no accurate estimate given in the conversations, and so Alan Lee in Part 3 attempts to guesstimate the number of pending cases for which EB-2 visa numbers must be allocated now and in the future through two methods: counting through approved labor certifications, and counting pending petitions at the National Visa Center, I-485 adjustment of status applications at U.S.C.I.S., and the number of I-140 receipts at U.S.C.I.S. In so doing, he makes a conclusion on the necessity of H.R. 3012 to natives of China and India.

The author himself tried to obtain a guesstimate on future demand, but had admittedly many holes in the data. He attempted to do so through two means: first through counting the number of approved labor certification applications since the beginning of FY 2008 and second through counting the number of EB-2 cases held by the Department of State, I-485s held by U.S.C.I.S., and the number of I-140 receipts. In both instances, many assumptions had to be made (like filling in the missing DNA in Jurassic Park's dinosaur eggs) and national interest waiver cases were not counted for which the author has no statistics but believes do not constitute a significant number of approvals.

Counting Through Approved Labor Certifications

From the beginning of FY 2008 (10/1/07) to February 15, 2012, the Department of Labor has approved approximately 221,000 labor certification applications.  The author does not include labor certifications approved before that date as the vast majority should have been assigned visa numbers already.  Of the 221,000, how many are/were EB-2 instead of EB-3 cases? What is the attrition rate of approved labor certifications that never advance to the I-140/I-485/IV stage? What is the approval rate of I-140 EB-2 petitions by U.S.C.I.S.? What is the number of dependents attached to these approved labor certifications?

The Department of Labor Annual Report for Foreign labor Certifications October 1, 2009-September 30, 2010, provides us with useful information.  This author makes an assumption that job offers of $60,000 and more are for professional occupations and have the potential to be EB-2 applications.  Wage data given for India, China, Taiwan, Pakistan, and countries belonging to the Organization for Economic Cooperation and Development (OECD) show that $60,000 plus was being offered on average for these countries' 46,611 approved labor certifications.  That comprised 66.4% of the 70,237 labor certification applications approved in the fiscal year.  A perusal of the data of the five leading occupations for China and India were: China - computer software engineers, applications; statisticians; accountants and auditors; computer software engineers, systems software; electronics engineers, except computer.  India  - computer software engineers, applications; computer systems analysts; computer software engineers, systems software; computer information systems managers; computer programmers.  How many of these and other countries' professional jobs qualified under EB-2 as opposed to EB-3? Anecdotal information can be gleaned from The New York Times February 5, 2012, classified jobs section.  Labor certification application ads for professional positions must be placed in a publication like The New York Times.  For that date, the author counted 137 possible labor certification ads, of which 115 (83.9%) appeared destined for EB-2 placement through requirements of either bachelor's degree plus five years of related experience or master's or higher degree.  If the numbers are applied to the 221,000 total, 66.4% would be 146,744, and 83.9% of that figure would be 123,118 EB-2 bound labor certifications.  Assuming that the 83.9% figure is far from reality and New York is not representative of the rest of the nation, we plugged in a more conservative 60% figure, which brought the number to 88,046.  Putting in another assumption of 25% attrition, the number fell to 66,035.  According to information released in the December 29, 2011 CIS Ombudsman's "Recommendations To Improve The Quality In Extraordinary Ability And Other Employment Based Petition Adjudications," the percentage rate of EB-2 approvals by the Texas and Nebraska Service Centers is approximately 97%.  At a 97% approval rate, the figure for approved EB-2 petitions fell further to 64,054.  Many EB-2 principals have family members who are added on at the I-485 stage.  If we assume that the average family (counting singles, couples, and couples with families) is comprised of three applicants, the visa demand for applicants for EB-2 visas would be 192,161. Since the EB-2 category has historically been open for all countries of the world except China and India, one must assume that visa demand would have been met in the main by the already distributed numbers for all countries except those two.  The Department of Labor annual report showed that natives of China and India were issued 47% of all labor certification approvals during FY-2010.  We assumed that most of these held priority dates on or after October 1, 2007, the beginning of FY-2008.  Counting the attrition rate, we could expect visa demand for EB-2 China and India applicants to be in the neighborhood of 136,434.
(47% ÷ 66.4%=71% × 192,161=136,434). 

This is of course a very rough guesstimate that does not take into account upgrades to EB-2 from old EB-3 pre-FY-2008 cases nor national interest waiver cases for which labor certifications are not required.  The assumed figures can also be markedly off. 

Counting Pending Petitions at NVC, USCIS I-485 Inventory And I-140 Receipts

Another way to look at possible EB-2 visa demand is through a compilation of figures by the State Department and U.S.C.I.S. The State Department released figures that as of November 1, 2011, it was holding 6,888 visa petitions at the National Visa Center.  This figure included possible EB-2 dependents.  U.S.C.I.S. released figures on its I-485 inventory that as of the end of October, 2011, it was holding 29,190 applications.  This figure would also include EB-2 dependents.  The Ombudsman's report of December 29, 2011, supra, showed that for the first two quarters of FY 2011, U.S.C.I.S. was receiving EB-2 I-140 petitions at a rate of approximately 34,000-37,000 for the fiscal year.  Using these numbers, it would appear that there are approximately 36,078 principals and dependents held in the inventories of the State Department and U.S.C.I.S. at the beginning of November, 2011.  Although there are minor questions here, the large question is the receipts - did the rate continue until the end of the fiscal year?  How many of the receipts were already incorporated in U.S.C.I.S.'s I-485 inventory running the danger of being double counted here? For this, we made the assumption that the rate continued at the same clip, that most EB-2 visa petitions for consular processing did not request premium processing, and that most applicants from countries other than China and India requested concurrent I-140/I-485 processing. If premium processing was not requested, the small amount of FY-2011 visa petitions for overseas processing would generally not be duplicated in State Department statistics for the same year.  If concurrent I-140/I-485 processing was requested by non-China or non-India natives or the I-140 petitions were filed sufficiently early in the year, the likelihood was that the figures would be double counted on U.S.C.I.S's I-485 inventory for the year.  So we counted the first group and tried to eliminate most of the members of the second group from the I-140 receipts total.  Here we had to be wildly creative and refer back to the Department of Labor statistics for FY-2010 that showed natives of India and China being issued 47% of all labor certification approvals.  In extrapolating those figures and applying them to this situation, approximately 53% of the I-140 receipts would be filed for natives of other countries.  At the lower figure, 34,000 receipts, possibly 75% if not more of the approximately 53% for other countries could be double counted in the I-485 inventory.  We assumed a smaller attrition rate of 20% for this group since petitions had been filed.  If only 20%, the number of receipts to be accounted for were in the range of 27,200.  Then the calculation would be 27,200 × 53%=14,416 × 25% (not counted in the I-485 inventory)  = 3604 (other countries) +  12,754 (47% China and India) = 16,388.  No FY-2011  I-140 receipts for China and India were counted by the author in the I-485 inventory as the EB-2 visa availability date was only at November 1, 2007, as of November 2011, and I-485 applications could not be filed except for those who had petition priority dates prior to that date. Assuming the same family of three, the number would be 49,164 who require visa numbers in addition to the 36,078 stated above, or 85,242.  But added to this number should also be the number of receipts generated by natives of China and India for fiscal years 2008, 2009, and 2010. Assuming that most of these receipts were from cases with priority dates of October 1, 2007 and after, I-485 applications could only be submitted for individuals in these years beginning in November 2011.  According to the Ombudsman's chart data, FY-2008 receipts were approximately 24,000-28,000, FY- 2009 approximately 16,000-18,000, and FY- 2010 34,000-37,000.  Using the lower numbers with the same 47% but assuming that all I-140 petitions by natives of other countries adjusting status had already be incorporated in U.S.C.I.S.'s I-485 inventory and not adding further NVC numbers as the author does not believe that they would be significant and could be double counted in both the number of petitions and NVC totals from other years, the number of I-140 receipts with the 20% attrition rate attributable to China and India natives would be 9024 for FY-2008, 6016 for FY-2009, and 12,784 for FY-2010. Adjusting for the possibility that at least 25% of FY-2008 approved labor certifications from China and India predated October 1, 2007 and could already have been issued immigrant visas, the number for FY-2008 was dropped to 6768.  The number of the estimated petitions, 25,568, with an average family of three, would require 76,704 EB-2 visas.  With the above 85,242, visa demand would be somewhere in the neighborhood of 161,946.

Again the guesstimate does not take into account upgrades from EB-3 to EB-2 for cases from previous years nor national interest waiver cases.

The conclusion reached by the author through an examination of the EB-2 demand and the numbers available for the fiscal years to meet the demand is that there is an extensive backlog which is only beginning to show itself at this point.  Looking forward at the possible number which will come from FY-2012 cases, we are only able to make a guesttimate based on partial DOL data as we have no reliable FY-2012 statistics from U.S.C.I.S. As of February 15, 2012, DOL had received 17,700 cases, processed 16,555, and certified  12,350.  The average approval rate was 74.6%.  Assuming that the rates of receipts and certifications continue through FY-2012, DOL would receive approximately 47,200 labor certification applications and approve 35,211.  Just looking at these cases and not other active ones in various stages of processing, and putting the numbers through the same method as before in counting approved labor certifications, the number of individuals ultimately seeking EB-2 visas through labor certifications, the primary generator of visa demand in the category, would be 21,738.  This indicates that there may be some hope for the category to significantly move forward in the future after satisfying visa demand for the backlog. 

The author's methodology in conducting his own examination of the EB-2 visa demand must of course be taken with many grains of salt, but he only hopes that the guesstimates will tend to be within 25% accuracy of the developing picture.  He apologizes in advance for not considering any relevant factors or figures that would dramatically change the numbers arrived at.

As for H.R. 3012, the evidence suggests that passage of the bill will continue to be a pressing priority for EB-2 workers from China and India.

Following the publication of this article on March 5, 2012, Mr. Charles Oppenheim, Chief of Visa Control and Reporting of the Department of State, reportedly informed the American Immigration Lawyers Association on March 16, 2012, that he would likely retrogress the China and India born EB-2 cutoff dates to around August 2007, effective with either the May or June 2012 visa bulletin.  Mr. Oppenheim was clearly persuaded by the mounting evidence that there is considerable backlog in EB-2 visa demand which is just now surfacing.

Reprinted by permission of West, a Thomson business. Interpreter Release is the leading weekly immigration law periodical featuring in-depth, comprehensive analysis and authoritative coverage of legislation and regulations, cases, and agency guidance.

Copyright © 2012 Thomson Reuters.

The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.