DOS Answers Questions on Employment-Based Visa Numbers
Posted Apr 29, 2005
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With retrogression back as an immigration reality for many since January 2005, there is increased interest in understanding how the immigrant visa numbers are allocated and how the cut-off dates in the Visa Bulletin are established. Those unfamiliar with the topic of retrogression should review our December 10, 2004 NewsFlash, Employment Visa Numbers Retrogress, available on MurthyDotCom. The U.S. Department of State (DOS) provided additional insight to the employment-based visa number calculations and projections in mid-April 2005.
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Quarterly Percentages
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Rather than making all visa numbers available at the beginning of each fiscal year and then having a period of unavailability, visa number allotments must be spread throughout the year. Therefore, in each of the first three quarters of every fiscal year, the DOS can only release up to 27% of the available visa numbers per category, per quarter. By contrast, the DOS confirmed that there is no percentage limit on visa numbers in the fourth quarter of every year. The U.S. government's fiscal year runs from October 1 through September 30 each year. Therefore, the last quarter is July, August, and September of any given year.
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For example, the employment-based third preference (EB3) category is granted up to 28.6 percent of the minimum 140,000 visa numbers available per year, or 40,040 visa numbers. In each of the first three quarters, the DOS can only release 27 percent of these, or approximately 10,810 visa numbers per quarter. Note that this example only includes the minimum number of visa numbers available and does not address any additional available numbers from prior years. If, of the total available numbers, a full 27 percent is used in the first three quarters, only 19 percent of the visa numbers will remain for the final quarter. If the usage in the first three quarters is lower, however, and, of the visa numbers, more than 27 percent remains, it is permissible for the DOS to release more than 27 percent of the total available visa numbers for a preference category in the final quarter. Essentially, the numbers are spread out during the first three quarters and whatever is left is available during the last quarter.
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USCIS Biggest User of Visa Numbers
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At present, the DOS estimates that the U.S. Citizenship and Immigration Services (USCIS) allocates approximately 90 percent of the available visa numbers through its processing of I-485 applications to adjust status. Therefore, of the employment-based visa numbers, only about 10 percent is being used through consular processing. MurthyDotCom and MurthyBulletin readers should not assume that this means there is an advantage to using consular processing instead of adjustment of status. The consulates are bound by the same retrogression restrictions as the USCIS. Both the USCIS and the consulates are drawing from the same limited supply of visa numbers.
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Additional Visa Numbers Consumed from Prior Years
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Approximately 131,000 additional visa numbers were made available from a provision in the law that permitted the rollover of unused numbers in fiscal years 1999 and 2000 into subsequent years. Of these, 30,000 were used in fiscal year (FY) 2003. The remaining numbers are expected to be completely used in FY2005.
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There is movement in Congress to provide some additional, limited EB3 visa numbers - possibly for nurses and other professionals or skilled workers - but there is no guarantee that a law will be passed to accomplish this. Any significant developments in this important area will be the subject of future MurthyBulletin articles, all of which also become available on MurthyDotCom.
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Future Projections of EB3 Retrogressions
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For the remainder of FY2005, the DOS expects the EB3 numbers not to move much in either one direction or the other. EB1 and EB2 are not expected to retrogress during FY2005, which ends September 30, 2005.
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Projections of EB2 Retrogressions
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In the second half of FY2006, the EB2 category is expected to retrogress for mainland China and India. The DOS projects that the EB1 category may possibly also retrogress for India and China in FY2006.
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Conclusion
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The issues of visa numbers and priority date movement have, once again, become an integral part of employment-based immigration practice. This follows a number of years of relative ease during which employment based numbers were current and available in all employment-based categories. Anyone involved in the employment-based immigration process should try to get at least a basic, fundamental understanding of this key issue. It determines the direction and timing of a case and is vital to immigration strategy and planning. We at The Law Office of Sheela Murthy will continue to follow this matter to update our MurthyDotCom and MurthyBulletin readers.
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