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October Visa Numbers Open With A Thud: Action Needed Now To Pass "Visa Efficiency And E-Verify Extension Act of 2008"

by Alan Lee, Esq.

The 2009 fiscal year for immigrant visa numbers opened with disappointment for those expecting employment based categories 2 (EB-2 for advanced degrees or exceptional ability) and 3 (EB-3 for skilled workers and professionals) for China and India born to reopen with advanced processing dates. The same can be said for the worldwide (most countries of the world) EB-3 category. Prior to the closure of the EB-3 category from July-September, the worldwide EB-3 cut-off date was up to March 1, 2006, for China March 22, 2003, and India November 1, 2001. EB-3 opened for October with the worldwide date of January 1, 2005, for China October 1, 2001, and for India July 1, 2001. For both China and India, the EB-2 category in September was August 1, 2006, but October has seen China's date backlog to April 1, 2004 and India's to April 1, 2003. This of course means that applicants in these categories will have to wait longer for their cases to be reached for adjudication.

The Department of State's Visa Office (VO) outlook as expressed in the October visa bulletin is not very encouraging at this time for fast future movement of dates. VO writes that little if any forward movement of cutoff dates in most employment categories is likely until the extent of the U.S.C.I.S. backlog of old priority dates can be determined. VO attributes the previous rapid movement (and by extension disappointing opening of the fiscal year employment based numbers) on USCIS's prior "very high estimates" of cases that the agency had to review over the amount of available numbers to maximize use of employment based numbers for fiscal year 2008. These estimates undoubtedly indicated to the Department of State that many USCIS cases for adjustment of status requiring immigrant visa numbers were either not ready for adjudication or would be terminated short of the cases being approved and immigrant visa numbers required.

The family based categories' opening for October exhibited almost no change from the September allocations for visas. In the family preference categories, the closest to current, F-2A (permanent resident applying for spouse or unmarried child under the age of 21) is backlogged almost five years.

The heavily backlogged dates for most employment based and family based cases should be redressed now, and the opportunity to do so is presently before Congress in the "Visa Efficiency and E-Verify Extension Act" (S. 3414), introduced by Senator Bob Menendez (D-NJ) on July 31, 2008 and referred to the Judiciary Committee. This bill would recapture unused employment and family based visa numbers from 1992-2007 for immediate use 60 days after the date that the bill is signed into law. It would also allow for unused numbers in future years to be automatically rolled over to the next fiscal year.

What numbers are involved? Would they be significant enough to make a difference? Annually the family based preferences have a maximum of 480,000 and a minimum of 226,000 visa numbers available. The employment based categories account for 140,000 numbers per year. In discussions concerning "The Comprehensive Immigration Reform Act of 2006" which never passed, a Congressional Budget Office (CBO) cost estimate in May 2006 stated that the annual cap for family based cases had been set at the minimum for nine of the past ten years including 213,000 preference immigrants in 2005. The CBO projected that an additional 275,000 family sponsored visas could be awarded each year. On employment based cases, the CBO indirectly estimated that there were 335,000 unused visas from 2001-2005. Releasing the unused visa numbers from 1992-2007 would at the very least take years off backlogged categories if not open them up entirely.

The opportunity is present to rectify the non-use of visa numbers in the past. Various reasons have been given for the large numbers of unused visas every year, including miscommunication between the agencies, miscalculations by the Department of State, and inability to finish cases by Legacy INS/U.S.C.I.S. S. 3414 should be looked at not as a request for new benefits, but as a bill recapturing what should have been given out in the past.

© Alan Lee, Esq.

About The Author

Alan Lee, Esq. the author is a 25+ year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Administration in the Intelligence Reform Act of 2004.

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