• New Federal Fiscal Year Brings Backlogs in Employment-Based Green Card Applications for Chinese and Indian Nationals and for Those Applying as Professionals and Skilled Workers
  • October 6, 2005 | Authors: David Z. Izakowitz; Jacquelyn E. Stone
  • Law Firms: McGuireWoods LLP - Charlottesville Office ; McGuireWoods LLP - Richmond Office
  • The Department of State recently issued the October Visa Bulletin which, among other things, lists cutoff dates for the 2006 federal fiscal year for applications for permanent residence by beneficiaries of employment-based immigrant visa petitions. As of the first day of the new fiscal year, October 1, 2005, early cutoff dates will apply to mainland Chinese and Indian nationals in each of the first three employment-based immigrant visa categories, and to all foreign nationals in the third employment-based category. There is one significant exception: No cutoff date is imposed for any one applying as a Schedule A worker (mostly registered nurses and physical therapists) in the third employment-based category.

    As of October 1, 2005, affected beneficiaries of immigrant visa petitions will only be able to apply for permanent residence if their "priority dates" are before the dates listed in the Visa Bulletin. A priority date is the date on which the initial application in the green card process is submitted. In most cases, the priority date is the date the Department of Labor received the labor certification application. For categories not requiring labor certification, the priority date is the date the U.S. Citizenship and Immigration Services (USCIS) received the immigrant visa petition.

    Workers in the United States in non-immigrant status apply to the USCIS for permanent residence status. Individuals abroad apply for immigrant visas to the State Department at U.S. consulates or embassies. In all cases, applications will not be accepted from Chinese and Indian nationals, and from all applicants in the third employment-based category, unless the applicant's priority date is before the date listed in the Visa Bulletin.

    The October Visa Bulletin lists the following early cutoff dates:

    • Employment-based 1 category (managers and executives; persons of extraordinary ability; and outstanding researchers/professors):
      • January 1, 2000 for China
      • August 1, 2002 for India
    • Employment-based 2 category (exceptional ability aliens and advanced degree professionals):
      • May 1, 2000 for China
      • November 1, 1999 for India
    • Employment-based 3(a) & (b) categories (professionals and skilled workers):
      • May 1, 2000 for China
      • January 1, 1998 for India
      • January 1, 2001 for Mexico
      • March 1, 2001 for Philippines
      • March 1, 2001 for all other countries
    • Employment-based 3(c) category (other workers):
      • October 1, 2000 for all countries

    The State Department issues the Visa Bulletin on a monthly basis. Unless Congress acts to raise the number of immigrant visas per fiscal year, the backlog will probably only worsen in the near term. Based on information provided by the State Department, it appears that slightly more than 130,000 immigrant visa numbers will be available in the new fiscal year for the first three employment-based categories. The USCIS reports that its current backlog of pending adjustment applications totals approximately 140,000. The Department of Labor has over 300,000 pending labor certification applications in its backlog centers. In addition, the Department of Labor in late March instituted a new labor certification program, called PERM, which promises adjudication of cases within a 45 - 60 day framework. Thus, the total number of cases in the pipeline far exceeds the number of green cards which the USCIS and the Department of State can approve in a year.