October Visa Numbers Open With A Thud - Action Needed Now To Pass
"Visa Efficiency And E-Verify Extension Act Of 2008"
By Alan Lee, Esq.†‡
The 2009 fiscal year for immigrant visa numbers opened with disappointment
for those expecting employment based categories 2 (EB-2 for advanced
degrees or exceptional ability) and 3 (EB-3 for skilled workers
and professionals) for China and India born to reopen with advanced
processing dates. The same can be said for the worldwide (most countries
of the world) EB-3 category. Prior to the closure of the EB-3 category
from July-September, the worldwide EB-3 cut-off date was up to March
1, 2006, for China March 22, 2003, and India November 1, 2001. EB-3
opened for October with the worldwide date of January 1, 2005, for
China October 1, 2001, and for India July 1, 2001. For both China
and India, the EB-2 category in September was August 1, 2006, but
October has seen China's date backlog to April 1, 2004 and India's
to April 1, 2003. This of course means that applicants in these
categories will have to wait longer for their cases to be reached
for adjudication.
The Department of State's Visa Office (VO) outlook as expressed
in the October visa bulletin is not very encouraging at this time
for fast future movement of dates. VO writes that little if any
forward movement of cutoff dates in most employment categories is
likely until the extent of the U.S.C.I.S. backlog of old priority
dates can be determined. VO attributes the previous rapid movement
(and by extension disappointing opening of the fiscal year employment
based numbers) on U.S.C.I.S.'s prior "very high estimates"
of cases that the agency had to review over the amount of available
numbers to maximize use of employment based numbers for fiscal year
2008. These estimates undoubtedly indicated to the Department of
State that many U.S.C.I.S. cases for adjustment of status requiring
immigrant visa numbers were either not ready for adjudication or
would be terminated short of the cases being approved and immigrant
visa numbers required.
The family based categories' opening for October exhibited almost
no change from the September allocations for visas. In the family
preference categories, the closest to current, F-2A (permanent resident
applying for spouse or unmarried child under the age of 21) is backlogged
almost five years.
The heavily backlogged dates for most employment based and family
based cases should be redressed now, and the opportunity to do so
is presently before Congress in the "Visa
Efficiency and E-Verify Extension Act" (S. 3414), introduced
by Senator Bob Menendez (D-NJ) on July 31, 2008 and referred to
the Judiciary Committee. This bill would recapture unused employment
and family based visa numbers from 1992-2007 for immediate use 60
days after the date that the bill is signed into law. It would also
allow for unused numbers in future years to be automatically rolled
over to the next fiscal year.
What numbers are involved? Would they be significant enough to
make a difference? Annually the family based preferences have a
maximum of 480,000 and a minimum of 226,000 visa numbers available.
The employment based categories account for 140,000 numbers per
year. In discussions concerning "The Comprehensive Immigration
Reform Act of 2006" which never passed, a Congressional Budget
Office (CBO) cost estimate in May 2006 stated that the annual cap
for family based cases had been set at the minimum for nine of the
past ten years including 213,000 preference immigrants in 2005.
The CBO projected that an additional 275,000 family sponsored visas
could be awarded each year. On employment based cases, the CBO indirectly
estimated that there were 335,000 unused visas from 2001-2005. Releasing
the unused visa numbers from 1992-2007 would at the very least take
years off backlogged categories if not open them up entirely.
The opportunity is present to rectify the non-use of visa numbers
in the past. Various reasons have been given for the large numbers
of unused visas every year, including miscommunication between the
agencies, miscalculations by the Department of State, and inability
to finish cases by Legacy INS/U.S.C.I.S. S. 3414 should be looked
at not as a request for new benefits, but as a bill recapturing
what should have been given out in the past.
Readers should encourage their congressmen and senators to bring
the bill up as soon as possible for a vote. Of course, everyone
knows that Congress will be working heavily on legislation to prop
up the economy and that it will soon adjourn. That is why immediate
action should be taken now to write or telephone the legislators
to let them know how important readers believe the bill to be. If
readers do not know how to contact their legislators, they can utilize
the congressional contact information that we have provided through
the American Immigration Lawyers Association on the bottom of the
homepage of our website, www.AlanLeeLaw.com.
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