Employment Based Permanent Residency Hit with Backlog

 September 13, 2005

On September 13, 2005, the U.S. Department of State posted the October 2005 Visa Bulletin.  The Visa Bulletin lists the different visa categories and the dates when immigrant visas become available to eligible applicants.  If a person’s visa category is open, then he/she can proceed with the final steps towards permanent residency.  If the category is not open, the person will have to wait until it opens.

 Unfortunately, the October 2005 Visa Bulletin shows severe retrogressions in most of the employment-based visa categories, particularly for Indian and Chinese nationals.  While there is a possibility that the 5-7 year cut-off dates may be somewhat of an over reaction by the Department of State, it nonetheless appears that there will be significant delays in completing employment-based immigration cases for some time to come.  Paradoxically, the quota backlogs come at a time when the Department of Labor is making strides in reducing labor certification processing times through PERM procedures.

For those foreign nationals affected by visa availability, quota closure means that they will not be able to proceed to the last step, the permanent residency application, in their immigration process, until quota opens.  It will, however, still be possible to complete labor certification and the immigrant visa petition matters.  In labor certification cases the priority date, i.e. the date that holds the foreign national's place in line for visa availability, is the date that the labor certification application was filed.  This is a glimmer of hope in those cases where labor certification applications have been pending for several years.

While the quota news is discouraging, there is good news on the H-1B non-immigrant visa front.  Foreign nationals on H-1B visas with an approved I-140 immigrant visa petition, a pending I-485 permanent residency application, or on whose behalf a labor certification or I-140 immigrant visa petition was filed at least 365 days before the expiration of the 6th H-1B visa year, will be eligible for extensions until such time that the quota opens for them and they will be able to complete their immigration case.

Our office will continue to monitor our clients' cases and advise them of developments.