BUSINESS WATCH

Employment-Based Visa Retrogression: What is it and how does it affect the employer? By Dustin J. Kessler

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(1) Religious workers coming to carry on the vocation of a minister of religion, or to work in a professional capacity in a religious vocation, or to work for a tax-exempt organization affiliated with a religious denomination; (2) Certain overseas employees of the U.S. Government; (3) Former employees of the Panama Canal Company; (4) Retired employees of international organizations; (5) Certain dependents of international organization employees; and (6) Certain members of the U.S. Armed Forces.

 

Employment-Based Fifth Preference (EB-5)-- Employment Creation Investors receive 7.1 percent of the yearly worldwide limit. All applicants must file a Form I-526, Immigrant Petition by Alien Entrepreneur, with the BCIS. To qualify, an alien must invest between U.S. $500,000 and $1,000,000, depending on the employment rate in the geographical area, in a commercial enterprise in the United States which creates at least 10 new full-time jobs for U.S. citizens, permanent resident aliens, or other lawful immigrants, not including the investor and his or her family.

 

THE "QUOTA BACKLOG" and VISA RETROGRESSION

 

The Immigration and Nationality Act (INA) sets limits on how many employment-based immigrant visas may be issued each federal fiscal year (from October 1 through September 30) in all the above visa categories. The INA further provides that no one country may have more than a specific percentage of the total number of visas available annually. Recently, after a number of years where the availability of employment-based visa numbers was not an issue, limitations on these numbers have come back into play due to a number of factors.

 

Earlier, due to lengthy procedures for labor certifications through the federal Department of Labor (DOL) and severe processing delays at the BCIS, a substantial backlog occurred for employment-based petitions and, consequently, fewer immigrant visa numbers were utilized. However, in the recent years, with the successful backlog reduction efforts of both the BCIS and DOL, and the advent of PERM (the new method of applying of labor certification), the processing backlogs have been reduced significantly. This has resulted in the expeditious approval of immigrant visa petitions and an increase in the demand for visa numbers. Since the demand for visa numbers is anticipated to exceed the number of visas available annually, the federal Department of State (DOS) has begun to establish priority date cut-offs for most of the employment-based visa categories.

 

The DOS acts as the regulatory authority to ensure that the number of visas issued every year do not exceed the statutory limit.  The process for establishing cut-off dates starts when the DOS subdivides the annual preference and foreign state limitations specified in the INA into twelve monthly allotments. The totals of documentarily qualified applicants that have been reported to DOS are compared each month with the numbers available for the next regular allotment and numbers are allocated to reported applicants in the order of their priority dates - the oldest dates first.   If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered “Current.” For example, if the EB-3 monthly target is 4,000 and there are only 3,000 applicants, the category is considered “Current”.

 

Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be “oversubscribed” and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the Employment Third preference monthly target is 4,000 and there are 10,000 applicants, a cut-off date would be established so that only 4,000 numbers would be used, and the cut-off date would be the priority date of the 4,001st applicant. ‘Retrogression’ occurs when a cut-off date established by the DOS moves backwards or when visas in a particular category become completely unavailable. When the visa petition is employment-based and requires a labor certification, the priority date prior to PERM is established on the date a labor certification is filed with the State Workforce Agency. 

 

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