P R O F E S S I O N A L N E T W O R K S International Scholar Advising Significance of the October 2005 Retrogression of Permanent Resident Visa Numbers for Chinese and Indian Employees Helene Robertson, Marjory Gooding, Connie Burk, Arlene Wergin and Martha Wailes November 1, 2005
Significance of the October 2005 Retrogression of Permanent Resident Visa Numbers for Chinese and Indian Employees November 1, 2005 By: Helene Robertson, Marjory Gooding, Connie Burk, Arlene Wergin and Martha Wailes The U.S. Department of State recently released its October 2005 Visa Bulletin, the official publication in which the U.S. government announces which permanent residency applications can move forward into the final stage of processing. For the first time in many years, the Visa Bulletin indicates a retrogression in the priority dates for certain countries in the various employment-based green card classifications. This retrogression means significant delays in obtaining legal permanent residency (LPR) for people born in those countries. The information below is intended to provide a brief background on permanent residency, the anticipated delays, and the significance of the priority date associated with a specific case. While foreign nationals can be employed by academic institutions for significant periods on nonimmigrant visas such as the H-1B or J-1, there are strong reasons for many to wish to become permanent residents of the United States. LPR (also known as the green card or immigrant visa) is highly sought after both by international employees and their employers as it allows the employee to work legally for the employer for the foreseeable future. It allows individuals to apply for federal grants, receive certain types of security clearances, and remain at the institution once tenure is granted. It also allows dependents to obtain permanent residency, with universityage children becoming eligible for financial aid. Additionally, it facilitates travel in and out of the United States for business or for personal reasons. Once the individual has LPR, he or she does not need a U.S. visa to travel. Eligibility for LPR The process of obtaining LPR involves several steps. The institution or the individual must first establish the applicant s eligibility to apply for permanent residence based on employment. Eligibility is obtained by following one of two routes: 1) a petition (Form I-140) is filed with the U.S. Citizenship and Immigration Service (USCIS), establishing that the applicant is an Outstanding Professor or Researcher, an Alien of Extraordinary Ability, or that it is in the national interest (National Interest Waiver) to hire a foreign national; or 2) an application is filed with the Department of Labor for Alien Labor Certification, in which the employer undertakes competitive recruitment that does not uncover a U.S. national applicant, and then files Form I- 140 with USCIS. Extensive regulation and documentation accompanies each of these approaches. The actual LPR application is a separate step and requires a separate set of forms to be filed with USCIS. The basic form is the I-485. Applicants cannot apply for LPR (I-485) unless a Form I- 140 is filed and an immigrant visa number is available.
Employment-Based Permanent Residence Preferences and Per-Country Limits There are five employment-based preference categories available. Academic institutions typically sponsor individuals in the first three classifications, with the bulk of their filings being in the first two. EMPLOYMENT- BASED CATEGORY NAME EB-1 Alien of Extraordinary Ability Outstanding Professor/Researcher Multinational Executive/Manager EB-2 Member of the Professions Holding Advanced Degree (where job requires advanced degree) Alien of Exceptional Ability National Interest Waiver EB-3 Professional (job requires bachelor s degree) and Skilled Workers, Other workers(unskilled) EB-4 Special immigrants (including religious workers) # GREEN CARDS AVAILABLE PER YEAR (with no more than 10,000 for other workers) 10,000 EB-5 Work Creation (Investors) 10,000 The U.S. government can only approve a certain number of employment-based permanent residency applications per year. To keep the immigrant pool diverse, Congress has set a limit on the number of immigrants that can be approved annually per country. The same number of immigrants are allowed per country, regardless of the population of that country, although numbers not used by other countries are passed on to high-demand or high-population countries. As demand for green cards exceeds the supply, backlogs occur. A person s chargeability for LPR processing is determined by the country where he or she was born or where his or her spouse was born, not by citizenship. The Priority Date and its Significance In situations where there is a backlog, LPR applications (I-485) cannot be filed unless the person s priority date or place in line is current. A person s place in line is determined by the date his or her process was first initiated with the U.S. government either through the filing of a Labor Certification or the Form I-140. This initiation date is known as the priority date. Although the preliminary, qualifying paperwork (labor certification and/or the Form I-140) can be processed without concern about whether the priority date is current, an individual cannot
file the final paperwork needed to actually get permanent residency status (I-485) until his or her priority date is current as shown in the Visa Bulletin. This table is excerpted and modified for clarity from the October 2005 Visa Bulletin to illustrate how the priority dates work in the example below. Employment- Based All Chargeability except those listed CH (China) IN (India) ME (Mexico) PH (Philippines) 1 st C 01JAN00 01AUG02 C C 2 nd C 01MAY00 01NOV99 C C 3rd 01MAR01 01MAY00 01JAN98 01JAN01 01MAR01 C= Current U= Unavailable Example: Coworkers Feiquan (born in China) and Markus (born in Germany) qualify for the 2 nd preference. They have the same priority date May 1 2003 when their employer filed Labor Certifications, and both have approved Labor Certifications and Forms I- 140. Markus can immediately file for adjustment of status because his chargeability is current. Feiquan must wait. This is because in the case of China, the government is currently processing those applications that were started on prior to May 1, 2000 and Feiquan s priority date is May 1, 2003. Note that backlogs are expected for other nationalities as well, perhaps as soon as the coming year. The State Department s Visa Bulletin is published monthly with an updated list of priority dates (see http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html). It is virtually impossible to predict how quickly priority dates will move. They have been known to move backwards and forwards quickly. It is important to monitor them each month. Regressing priority dates also have an effect on I-485 applications for LPR that have already been filed. If an I-485 is filed and is pending when the priority date regresses, the government simply puts it on hold and will not resume working on it until the priority date for that application once again becomes current. However, people whose I-485s have been accepted by USCIS can continue to apply for employment authorization and advance parole (travel permission). Waiting for the Priority Date to Become Current Individuals must maintain legal nonimmigrant status and work permission while they wait for their priority dates to become current. Labor Certification and an approved Immigrant Visa Petition (Form I-140) only establish the employee s eligibility for the green card classification requested. They do nothing to extend legal status or give work permission.
Normally, people can only hold H-1B status for a total of six years. But if the LPR process (Labor Certification or Form I-140 is filed) was started at least one year before the end of the sixth year in H status, the H-1B and any H-4 dependents qualify for extensions as long as necessary. However, a spouse with his or her own H-1B status will not be able to extend beyond the six-year maximum, unless the spouse is also being sponsored for permanent residency. Individuals who do not qualify for the H extensions must maintain their legal status and their ability to work in some other way and will need to work closely with the International Services office. Strategies for Handling Backlogged Priority Dates You will want to consider the following strategies: Does the individual qualify for a preference classification where there is no backlog, such as Schedule A, Group II? Is the spouse from a country that does not have a backlog? Does the individual qualify for permanent residency through the family-based options? Is the individual eligible for the immigrant diversity lottery? Is it impossible to extend the individual s nonimmigrant classification, or can the individual take a sabbatical and wait outside the United States until the priority becomes current? The timely, strategic planning and management of an employee s immigration status is of utmost importance now that the priority dates are once more an issue. This requires better communication and coordination among the departments, the employee, and the International Office.