A Waiting Game: Visa bulletin reform is intended to relieve the backlog affecting employment visas – but when?

Monday, October 19, 2015 - 13:17

In November 2014, President Obama announced a multiagency plan to “modernize and streamline” the U.S. immigrant visa system. As one of the signature reforms in the administration’s plan, on September 9, 2015, the Department of State (DOS) announced that beginning in October 2015 it would begin implementing major changes to the format of the monthly visa bulletin for employment-based categories. These revisions are intended to benefit foreign national employees seeking an immigrant visa (colloquially called a green card) and lawful permanent resident (LPR) status in backlogged categories by providing a faster avenue to ancillary benefits, such as employment authorization, travel authorization and more flexibility in changing employment. President Obama’s visa bulletin reform will not shorten the often lengthy wait for LPR status because only Congress has the power to increase the total number of available employment-based immigrant visas.

By way of background, prior to the October 2015 changes, the DOS’ monthly visa bulletin only listed cutoff dates governing immigrant visa availability. When a foreign national files a preliminary application for an immigrant visa, the date of the initial filing becomes the “priority date.” Foreign nationals seeking to obtain LPR status can do so only when their priority date becomes “current,” and an immigrant visa number is available. The cutoff dates listed in the visa bulletin are updated by the DOS based on varying factors, and availability is restricted by the statutory numerical limitations delineated in the Immigration and Nationality Act, with employment-based immigrant visas capped at 140,000 per year. This limit is counted against the principal immigrant and any dependent family members. Further, this number is divided into five employment-based visa preference categories. Finally, visa availability is limited by a foreign national’s country of birth, allowing no more than 7 percent of the quota per country. When there is significantly more demand than availability in immigrant visa numbers, the cutoff date is moved back chronologically, causing visa retrogression. Combined, these factors have led to significant backlogs in certain employment-based categories, with hundreds of thousands of people waiting for their priority date to become current. Foreign national employees from China, India, Mexico and the Philippines, countries with large U.S. immigrant visa demand, are most affected by backlogs.

The revised monthly visa bulletin aims to provide relief in the form of ancillary benefits to those applicants in severely backlogged and retrogressed categories, and it includes two separate cutoff date charts for each employment-based visa category. The Application Final Action Dates chart is identical to the old visa bulletin chart and shows actual immigrant visa availability. The second chart, which is new, provides dates for how early the applicant may file for an immigrant visa and associated ancillary benefits. The new cutoff dates for filing applications will allow some foreign nationals to file applications much earlier than under the prior visa bulletin format. Although the updated visa bulletin does not provide a faster path to LPR status, it does allow eligible foreign nationals to submit their green card applications and receive ancillary benefits earlier than under the previous format.

Based on the visa bulletin revisions, we can expect that employers will have more flexibility in promoting foreign talent to the same or similar positions within their organizations. Additionally, foreign national employees will be eligible to receive ancillary benefits, including work authorization and international travel. However, employers face a potential disadvantage as the new revisions allow earlier filing dates for immigrant visa applications, and current portability provisions under the American Competitiveness in the Twenty-First Century Act allow foreign nationals who have immigrant visa applications that have been pending for over 180 days to assume a similar position with a different employer.

Further, the longevity of the revised visa bulletin format is uncertain. On September 25, 2015, less than a week before the October 2015 Visa Bulletin was to take effect, the DOS rolled back some application filing dates and reissued the October Visa Bulletin without explanation. This sudden revision allows fewer individuals from India, China and the Philippines to submit immigrant visa applications than previously anticipated. This last-minute revision has already resulted in pending litigation: a proposed class action lawsuit was filed on September 28, 2015, at the U.S. District Court for the Western District of Washington, on behalf of all foreign nationals within the EB-2 preference category who would have been eligible to file green card applications under the original October Visa Bulletin, on the basis that changes were arbitrary and capricious, in violation of the Administrative Procedure Act, and on the basis that inadequate notice was provided to class members, in violation of due process. On October 7, 2015, the court denied the plaintiffs’ application for a temporary restraining order. The newly released November 2015 Visa Bulletin has identical filing cutoff dates to the revised October bulletin for affected foreign nationals in the EB-2 and EB-3 categories.  

Taking into account the DOS’ recently scaled back cutoff dates, the class action lawsuit and the lack of legislative action by the Congress in codifying these changes into law, future cutoff date trends and the permanence of visa bulletin reform are unclear. Nonetheless, this new reform has the potential, over time, to benefit thousands of backlogged LPR employment-sponsored applicants.

 

 

 

Michael D. Patrick is a partner at Fragomen, Del Rey, Bernsen & Loewy, LLP. He can be reached at mpatrick@fragomen.comRuby Li, associate, Ivo Pierotich, legal extern, and Nancy Morowitz, counsel at Fragomen, assisted in the preparation of this column.