Employment Visa Backlogs

About 140,000 immigrant visas are available annually for employment-based immigration. The visas are divided among five preference classifications, with the majority allocated among the first, second and third preference categories (28.6% to each). Each country can only use 7% of the annual total of immigrant visas per year. When the demand for immigrant visas exceeds the available supply, a backlog develops. India, China and the Philippines, which typically use all of their available visas, have longer backlogs than other countries.

There is an artificially long waiting time for some countries such as China and India as a special rule limits for one-year visas to countries which use the maximum annual number of visas the previous year.

Visa availability is based on a foreign national’s country of birth, preference category and “priority date,” which is the date the labor certification application is filed with DOL or for an EB-1 or national interest or Schedule A case filed. The Department of State’s (DOS) Visa Bulletin is at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html. As you can see from this list, the waiting times for a visa number in some categories are very long.

Only those people whose priority dates are earlier than the dates shown in the monthly Visa Bulletin are eligible to file for adjustment or an immigrant visa as discussed below. The Visa Bulletin cut-off dates are updated by the DOS about the 10th of each month.

Those with a Master’s degree or greater (or bachelor’s degree and 5 years experience) (and the job must require that level of education) may fall under the employment-based second preference immigrant visa classification (professionals holding advanced degrees). Often it is faster to immigrate via this visa preference because it is not as backlogged as the third preference.

It is not possible to know when a priority date might become current. We were hoping for legislative relief which would have provided new immigrant visa numbers and eased or eliminated the backlog. However, the bill for this relief, which passed the Senate was dropped in the House of Representatives, and it is uncertain whether such relief will happen in the future. Over the years when the system gets out of balance and the backlogs too great Congress provides some relief, except for the family based visas.

Until such time as a priority date becomes current and one can file for adjustment of status, one must maintain a valid nonimmigrant visa to stay in the U.S. and continue working. An H-1B visa can be extended beyond the six year maximum if the foreign national is the beneficiary of a labor certification filed at least 365 days before the end of the sixth year of H-1B status or if the foreign national has an approved preference petition but cannot file a permanent residence application because of the unavailability of an immigrant visa number.