March 2005 Newsletter
Backlogs May Seriously Delay Employment-Based
By James A. Bach, Esq.
An immigrant’s place in the quota queue
depends on the date of filing either the immigrant visa
petition (I-130 or I-140) or labor certification. That date
is the applicant’s "priority date." Each month the U.S.
State Department issues a "Visa Bulletin" that shows the
"cutoff date" (click
here to view this month’s Visa Bulletin). When the
priority date is earlier than the cutoff date the
green card can be issued. ("C" on the Visa Bulletin stands
for "Current," and means that there is no quota backlog in
Over the past five years, there has been
no quota backlog in the five employment-based categories
(EB-1, EB-2, EB-3, EB-4, and EB-5). That is, these
immigration categories have been "Current," in large part
because of the huge backlog in labor certification
processing at the Department of Labor. That will soon
There is a total of 140,000
employment-based visas allocated each year, plus unused
visas from past years. However, only 70,000 visas are
allocated to the two categories that require labor
certification, EB-2 and EB-3. That 70,000 is augmented by
unused visas from the EB-1, EB-4 and EB-5 categories and
unused visas from past years.
Currently there are more than 300,000
labor certification applications pending at the Department
of Labor, and the new PERM procedure will inject many other
applications into the system. Many pending labor
certifications will be abandoned, but even if only half are
approved there will be a demand for over 150,000 new
employment-based green cards within the next year or so.
However, the green cards of the employees’ spouses and
children are also charged against the same quota (EB-2 or
EB-3). Each employee has an average of two dependents, so
there may be an annual demand in excess of 450,000 over the
next few years. That demand far exceeds the 100,000 or so
green cards allocated each year to the EB-2 and EB-3
There are currently approximately 100,000
past unused visas that can be added to the current year’s
quota because of incomplete allocation in 1999 and 2000.
However, those additional visas may be used up by next
year. After that, backlogs will ensue unless Congress
increases the quota.
Already, backlogs have arisen because of
the per-country quota, which is imposed in addition to the
worldwide quota discussed above. In January 2005, for the
first time in several years, the India, China, and
Philippines Third Preference categories became backlogged
(three years, to January 1, 2002). And this month, the Other
Workers category (for jobs requiring less than two years of
education or experience) has become backlogged for all
countries to July 1, 2001. See, March
Visa Bulletin. Per-country backlogs were a big problem
in the late '90's, and are likely to become so again (see,
March 1999 Newsletter).
The immediate solution appears to be a
race for green cards before the quota is oversubscribed.
Those who can get an approved labor certification in 2005
may be able to complete their cases before the quota is
filled, and filing a PERM case as soon as possible might
result in an early green card (at least for those who are
not in the India, China or Philippines Third Preference
category). However, for those who apply next year and
beyond, there may still be a waiting list of several years
to become a permanent resident based on employment, despite
the promise of lightening-fast PERM processing.
Copyright 2005 Law Offices
of James A. Bach
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Priority Dates Explained