January 19, 2021

Volume XI, Number 19

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January 18, 2021

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Green Card Process: The Visa Bulletin and Backlogs

The Visa Bulletin, published every month by the Department of State (DOS), is the key to the Green Card process. The Department of State is charged with allocating the statutory 140,000 employment-based immigrant visas each year. The Bulletin announces when an applicant can file for the coveted Green Card. A foreign national cannot file an application for adjustment of status or receive an immigrant visa from a consulate abroad until the foreign national’s priority date is “current” in the Visa Bulletin. The priority date is “current” when it is earlier than the date listed in the Bulletin for the relevant visa type. A foreign national’s priority date is set when the individual files the first step in a Green Card case – either the filing of a PERM application or the filing of an I-140 Immigrant Visa Petition. The Visa Bulletin reflects the DOS’s prediction of the overall visa demand (by visa type and country of birth) for any period based on the number of qualified visa applicants reported by DOS, pending adjustment of status applications reported by USCIS, and the historical drop off rates (denials, withdrawals, and abandonments).

There is an issue with the current system because the law states that no one country can use more than 7% of the 140,000 immigrant visas available each year. This means that if one country uses all its 9,800 visas in a year, the remaining applicants have to wait until the next year. Due to the high number of sponsored Indian citizens by U.S. companies over the last 20 years, an enormous backlog has developed for people born in India. Currently, estimates are that Indian nationals could wait from 20-75 years to obtain Green Cards, while individuals from other countries might have to wait only a year or two. Of course, few really wait that long. Many leave the U.S. and go “home” or to more “welcoming” countries. This creates additional work for the employee and company to maintain valid nonimmigrant status while these backlogs ease their way forward.

To attempt to relieve some of the wait, since 2015, the Visa Bulletin has included two charts for each type of visa: Application Final Action Dates (dates when visas may finally be issued) and Dates for Filing Applications (earliest dates when applicants may be able to apply). The application filing dates are generally earlier than the final action dates and the USCIS decides each month whether the filing dates can be used instead of the final action dates. Months may go by when only the final action dates are usable. Charles Oppenheim, DOS Chief of the Visa Control and Reporting Division, provides analysis and projections about the Visa Bulletin from time to time. These projections can help determine whether to expect “progress” or “regressions” for various categories and countries. The predictions provide some input into Green Card strategies, but nothing is guaranteed. The lines progress or regress (like a market economy) based on the changing demand – and that tends to be unpredictable.

Various bills have been introduced in the House and Senate to try to make the system more equitable and ultimately more efficient. Some bills would eliminate the “per country 7% limitation.” Although this would help the backlog for Indian workers, it would be detrimental to employees from other countries. In any event, little improvement can be expected until the annual allocation of Green Cards is increased.

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Jackson Lewis P.C. © 2020National Law Review, Volume IX, Number 302
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About this Author

Jessica Feinstein, Jackson Lewis, Employer Compliance Lawyer, immigrant petitions attorney
Of Counsel

Jessica Feinstein is Of Counsel in the Omaha, Nebraska, office of Jackson Lewis P.C. She specializes in representing U.S. and multinational companies in employment based immigration preparing nonimmigrant and immigrant petitions.

Ms. Feinstein specializes in representing U.S. and multi-national companies in employment based immigration. She has extensive experience preparing nonimmigrant visa petitions, including H1B, TN, L1, E, and H2B, as well as  preparing employment-based permanent resident petitions. She also...

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