The Precarious Future of EB2 amidst Anti-Immigration Policies

Published on    30 June 2014     Hits: 806

The history of immigration law is long but feels short because a small change results in drastic consequences. There are instances where the outcome differs significantly depending on when (before or the after the small change was implemented) one starts the process for permanent residency.  After practicing immigration law for more than a decade, I have begun to think that divine influence must be involved in where we put our roots down, a lot like career fortune and luck with money.

There are a limited number of visas available for each immigration category every year. Thus EB2, with relatively fewer applicants compared to the allocated visa quota, takes a shorter amount of time than EB3, which has many applicants.  Nowadays, it is assumed that it takes one year to get green card for those in the second preference category and 7 years for those in the third preference category. However, this differential between the two visa categories did not come about that long ago. When the Labor Certification Process, which had taken several years, was accelerated with the introduction of the PERM System in 2005, high volume of immigration applications were filed and so the waiting period for the third preference category that has many applicants increased substantially.

Warning signs for EB2, which had been smooth sailing until now, came at the end of 2011 when a bill that sought to eliminate per country numerical limitations, HR 3012, was passed in the House.

There are many different types of quotas in immigration visas – a quota depending on the category and a quota depending on nationality.  Under the per country numerical limitations, no more than 7% of visas are distributed to persons of the same nationality within a category. For employment-based immigration, India and China, with the most applicants, are naturally affected by the quota system and have substantially longer waiting times.

HR 3012 is the result of strong lobbying by groups that sympathize with Indian applicants. In particular, Indian applicants in the IT industry had to wait 4-5 years even though they are in the second preference category and 10 years for those in the third preference category. Thus, many regard this quota system as modern day slavery. People from this group that are spread amongst all industries, especially those who have become leaders in Silicon Valley are sympathetic of their situation so they have successfully lobbied with leading companies to eliminate the quota system.

The truth is, per country numerical limitations originate from racism. With the decrease in European immigrants and increase in people-of-color applicants, this policy discriminating against people of color was introduced under the guise of maintaining diversity.  Considering this origination, it is only right that the quota is eliminated.

What I am most distressed about is the fact that what these massive groups came together to lobby for is only elimination of per country numerical limitations. What is needed for U.S. society as a whole is to increase the visa quota for each visa category. Per country numerical limitations must be eliminated along with the unrealistically small quota that is allocated to each visa category that is degrading immigrants to slavery.

It is unclear whether this lobby group lobbied for HR 3012 after taking everything into consideration and deciding to focus on a manageable issue thereby increasing the chance of getting the law passed or if it’s because their purpose was to profit only a certain group.  But I would like to see efforts for greater changes.

This law seemed to die out without vote in the Senate due to Senator Grassley, the leader of anti-immigration power in the Senate. After putting this law on the shelf, Senator Grassley demanded increase in regulations and audits of L-1 visa and H-1B visa many times, for the reasons of fraud and failure to help decrease U.S. unemployment rate. What Senator Grassley’s anti-immigration policy does is making immigrants the target of fear that Americans have due to high unemployment.

While the law is delayed, the priority date for EB2 goes through a change for what reason we do not know. The priority date for India and China moved forward substantially. And then all of sudden, the Visa Bulletin for July that was published on June 11 showed that the priority date for EB2 as a whole was moved back to 2009. This created a state of emergency.

According to the Visa office, USCIS requested that the priority date for India and China be moved forward because the number of I-485 filed was too few compared to the number of I-140s that were approved by USCIS. Thus, since the priority date was moved forward, the number of I-485’s that were filed increased by 50% in February and by June, enough applications were filed to use up the remaining number of visas, so a visa cut-off date had to be established.

Thus, an applicant in the second preference category could not file application to register as permanent residence (I-485) during the last three months (July, August, September) of fiscal year 2012 and even if it was filed, he or she would not be approved.

Then, how long is the visa waiting period going to carry on for?

The visa quota is reset in October every year when the new fiscal year begins. Thus, depending on the number of those on the waiting list the cutoff date could go away in October or there could be a short waiting period. Nonetheless, it will not be paused at 2009.

In response to the American Immigration Lawyers Association’s question, Charlie Oppenheim from the Visa Office predicted that the priority date for second preference will become current in October when the new fiscal year for 2012 begins.

In that case, there will be no delay with Consular processing and USCIS I-485 processing. Cases that have already been filed will be determined according to the normal processing time and cases that could not have been filed can be filed and processed like before. The actual visa priority date will be published in the October visa bulletin, which comes out around September 10th.

However, the above prediction is based on the new law not being passed.

Senator Grassley, who has put a hold on HR 3012, made a proposal last month. He agreed to elimination of per country numerical limitations in exchange for increasing employment-based visa issuance conditions.

This proposal would increase Department of Labor involvement with H-1B employers and include annual audits by the Department of Labor. Considering Senator Grassley’s past political tendency, this can be interpreted as making hiring of L-1 Intracompany Transferees and H-1B Specialty Occupation Employees more difficult.  The high denial rate of H-1B and L-1 visa applications at the US Consulates in India and China is already a controversial issue with underlying bias. Even those who appear to benefit from the lifting of per country quota will suffer from over-regulation of work visas.

It is difficult to predict whether and when the Senate will vote on the amended bill, and whether the House will also pass the Senate’s amended bill.

While waiting for the specifics, I am fearful of what our immigration community will suffer if this bill passes. I am anxious that there will be more of a loss than gain from this compromise.

What can EB2 applicants do in the face of this uncertainty?

It is advisable to expedite one’s case since it is uncertain whether the bill will pass and if so, when. The quota will reset in October and until the amended bill passes, EB2 cases will be processed without delay. Thus, one should make the most of this gap.

If the amended bill is passed early on, the waiting period for EB2 will steadily increase. This is because the per country numerical limitations will not be eliminated at once but gradually. Therefore, cases that are filed earlier will benefit.

In this way, the speed of immigration application processing and immigrants’ waiting times are continuously being shaken by forces larger than us. Until the green card process is over, we cannot know what variables will come about no matter how well we prepare ourselves, so it is important to maintain legal status and pay attention to the immigration movement.

Mario Guevara-Martinez