The Long Wait for Employment-Based Green Card
By Reuben S. Seguritan
December 09, 2015
Many people know that the process of becoming a U.S. immigrant through employment begins with the filing of a labor certification application or an immigrant visa petition which assigns a “priority date” to the foreign national. This priority date determines the foreign national’s place in the line for an immigrant visa.
But many people also make the mistake of underestimating the length of time they must wait before a visa number becomes available to them. For example, if an EB3 preference petition is filed for a professional today, he might assume that, based on the latest visa bulletin which shows an August 1, 2007 cut-off date for the Philippines, his priority date will become current in about eight years.
This is not necessarily true. To understand how long one must wait before his/her priority date is reached, it is useful to have an idea of how immigrant visa numbers are allocated and what the actual demand under a visa category is.
The monthly cut-off date is determined by the Visa Office (VO) of the Department of State (DOS). The VO collects information from overseas consular posts as well as the USCIS with regard to immigrant visa requests. It calculates visa number usage and compares the demand with the allotment, separating it by foreign state chargeability and preference.
If the demand does not exceed the allotment, the category is current and no cut-off date is needed. Otherwise, the category is considered oversubscribed and DOS sets a cut-off date which is the priority date of the first applicant who will not receive a visa number.
Employment-based (EB) immigration operates on a preference system which distributes the limited number of immigrant visa numbers available each year into five general categories. These are: EB1 for priority workers; EB2 for advance degree processionals and aliens of exceptional ability; EB3 for skilled workers, professionals and lesser skilled “other workers”; EB4 for special immigrants, including religious workers; and EB5 for investors. The principal worker’s spouse and children are counted against the available number of immigrant visas.
The law sets a worldwide limit of 140,000 EB visas per fiscal year. The EB1, EB2 and EB3 categories each get 28.6% of the total or 40,040 visas per category. The EB4 and EB5 categories each get 7.1% or 9,940 visas.
However, there is also a per-country limitation in the number of visas available per EB category which is 7% of the total annual limit. This means that only 2,803 visas for EB1 through EB3 and about 700 visas for EB4 and EB5 may be initially allocated to any single nationality group per year. Quite obviously, the visa allocation system works to the disadvantage of populous countries such as India, China and the Philippines.
The complex visa allocation system also involves several mechanisms that reallocate unused visa numbers. Unused visa numbers in EB4 and EB5 “fall up” to EB1. Unused numbers “fall down” from EB1 to EB2 to EB3. If an oversubscribed country has a relatively small demand for family-based visas, the excess visa numbers “fall across” to the EB preferences, as long as the total number use is still within the 7% limit for the country. This also works the other way around, i.e. from employment based to family based. However, the Philippines does not benefit from this type of spillover because it is oversubscribed in both employment and family preferences.