Mark A Ivener, A Law Corporation

Employment Visa Categories Backlogged

The October 2008 Visa Bulletin disseminated by the Department of State’s Visa Office notes that the May 2008 Visa Bulletin had stated that many employment cut-off dates had been advancing very rapidly, based on indications that U.S. Citizenship and Immigration Services (USCIS) would need to review a significantly larger pool of applicants than there were numbers available to maximize number use under the fiscal year (FY) 2008 annual limits. The May Bulletin also stated that if the USCIS projections proved to be incorrect, it would be necessary to adjust the cut-off dates during the final quarter of FY 2008. USCIS estimates have proven to be very high, the October Bulletin notes, resulting in (1) the unavailability of all employment third preference categories beginning in July, (2) the unavailability of visa numbers for China and India employment second preference adjustment of status cases during September, and (3) the establishment of many October employment category cut-off dates that are earlier than those that applied during FY 2008.

Little if any forward movement of the cut-off dates in most employment categories is likely until the extent of the USCIS backlog of old priority dates can be determined, the State Department noted, estimating that the FY 2009 employment-based annual limit will be very close to the 140,000 minimum.

The EB-3 cutoff of January 1, 2005, is disappointing given the fact that it regressed 17 months from March 1, 2006, in June when the Visa Office opined that it would fully recover by October. The specter of little forward motion, and the fact that priority dates were in the 2002 range through much of the last fiscal year, gives little cause for comfort. Such employees may wish to consider filing for the DV-2010 lottery (see next story).

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Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.