Tag Archives: State Department

Immigration Blog

Family Immigration Backlogs Persist

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In recent years, much attention has been paid to the long waits for green cards for employer-sponsored immigrants. Many believe such waits harm the competitiveness of U.S. companies, since it makes it more difficult to retain top talent in the United States.

Much less attention has focused on the waits in the family-sponsored immigration categories. The wait times for sponsoring a close family member are long and, in some cases, extremely long. In a November 2010 report, the State Department tabulated more than 4.5 million close relatives of U.S. citizens and lawful permanent residents on the immigration waiting list who have registered for processing at a U.S. post overseas. That does not include individuals waiting inside the United States, such as in a temporary visa status, who would gain a green card via adjustment of status at a U.S. Citizenship and Immigration Services office. Counting such individuals as well would likely increase the waiting list to over 5 million.

An “immediate relative” of a U.S. citizen can immigrate to America without being subjected to an annual quota. This is important, since it is the relatively low quotas in the family and employer-sponsored preference categories that lead to waits of often many years for would-be immigrants. While there is no numerical limit in the immediate relative category, processing would still normally takes several months. The three primary immediate relatives included in the category are: spouses of U.S. citizens; unmarried children of a U.S. citizen (under 21years old, or under 16 if adopted); and parents of U.S. citizens, if the petitioning citizen is at least 21 years old.

The Preference Categories

Below are the descriptions of the four family-sponsored preferences as detailed in the State Department’s monthly visa bulletin, along with their annual quotas.

“First – Unmarried Sons and Daughters of Citizens: 23,400 a year.

“Second – Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents: 114,200 A. Spouses and Children: 77% of the overall second preference limitation, of which 75% are exempt from the per-country limit; B. Unmarried Sons and Daughters (21 years of age or older): 23% of the overall second preference limitation.

“Third – Married Sons and Daughters of Citizens: 23,400.

“Fourth – Brothers and Sisters of Adult Citizens: 65,000.”

The wait times are longer for U.S. residents sponsoring relatives in Mexico and the Philippines. That is because of the per country limits, which generally limit a country to no more than 7 percent in the preference categories. For example, the wait time for a U.S. citizen petitioning for a brother or sister from the Philippines exceeds 20 years. For siblings from countries other than Mexico and the Philippines the wait times are closer to 10 years. These  estimates are based on examining the visa bulletins and other data from the State Department and U.S. Citizenship and Immigration Services.

Wait Times for Sponsoring a Relative in India

The wait times for individuals sponsoring relatives who are in India are estimated to be as follows:

Unmarried Adult Children of U.S. Citizens – 7 year wait.

Spouses and Minor Children of Permanent Residents – 3 year wait.

Spouses and Minor Children of Permanent Residents – 8 year wait.

Married Adult Children of U.S. Citizens – 10 year wait.

Siblings of U.S. Citizens – 11 year wait.

More Visas Needed to Reduce Family Wait Times

To reduce family wait times more immigrant visas would need to be added to the family preference categories. H.R. 3012, which would eliminate the per country limit for employment-based immigrants, would help people from India and China in those categories. However, increasing the per country limit from 7 percent to 15 percent in the family categories, which the bill does, would help those waiting the longest for family members from Mexico and the Philippines. By doing so, it would lead to somewhat longer waits for family-sponsored immigrants from other countries, including India. Other than permanently increasing the number of family-sponsored green cards, something Congress has not done since the current quotas were set in 1990, the long wait times for relatives will likely continue.

Immigration Blog

EB-2 Green Card Situation Improves for High-Skilled Indians and Chinese

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The new State Department Visa Bulletin indicates the availability of green cards is improving slightly for Indian and Chinese nationals sponsored in the employment-based second preference, known as EB-2. (A copy of the latest visa bulletin can be found here.)

How the Law Works

Under the law, there are 5 employment-based preferences: First Preference (EB-1, priority workers); Second Preference (EB-2, worker with advanced degrees or exceptional ability); Third Preference (EB-3, professionals, skilled workers and other workers); Fourth Preference (EB-4, special workers, such as religious workers); and the Fifth Preference (EB-5, employment creation or investor visas).

A total of 40,040, or 28.6 percent of the 140,000 annual quota is used by each of the first, second and third preferences. The second preference can use any numbers not utilized by EB-1, while EB-3, the third preference, can use any visa numbers not utilized by the EB-2 category. For the employment-based second preference, generally the employer needs to require the position to be filled by someone with a masters degree or higher and the individual possesses such a degree.

The employment-based immigrant categories have per country limits, which makes the waits longer for nationals from large countries. India and China are most affected by those limits in the employment categories.

Priority Dates

The setting of priority dates is used to manage the flow of immigrant visas within the limits set by Congress. A visa number generally is “available” for an individual with a priority date earlier than the date listed in the State Department’s most recent Visa Bulletin. A priority date is usually triggered by the date a labor certification application or an immigrant petition is received by the federal government.

In the December 2011 Visa Bulletin, just published online, the priority date for EB-2 is March 15, 2008.  In the November 2011 Visa Bulletin, the priority date for the employment-based second preference was November 1, 2007. This type of movement in a short period is used to encourage more applicants to help ensure the quota is close to fully utilized without going over the annual limit.

The Situation for EB-2 Applicants

In recent years, because of the fall down of immigrant visas from the EB-1 category, about 50,000 immigrant visas a year have been available in the employment-based second preference. Nationals from India and China can exceed the per country limit allocation for their respective countries if otherwise immigrant visas within a category would go unused.

A brief analysis of the EB-2 situation can be found here on the website of the law firm Berry Appleman & Leiden. The analysis notes, “A foreign national cannot apply for permanent residence (a green card) until a visa is available based on their priority date, preference category, and country of birth.” It goes on to explain: “The DOS [Department of State] has predicted that it is possible that immigrant visa availability could move forward again in the January and February 2012 Visa Bulletins, but then retrogress later in the year. Last year, according to the DOS, there were 3,000 EB-2 petitions filed on behalf of individuals born in India who already have priority dates established through EB-3 petitions.  Because those individuals can use their previous EB-3 priority date for the EB-2 category, the movement in EB-2 numbers for India is likely to slow down.”

The attorneys at Berry Appleman & Leiden also offer this advice: “While we cannot predict whether movement will occur in the Visa Bulletin, it is important that any Indian or Chinese national with a current priority date files the last step of the green card process as soon as the priority date is current in December.  If visa numbers regress before the application has been filed, the foreign national will lose the opportunity to apply for permanent residence, which would negatively affect dependent children who are close to turning 21.”

The Bottom Line

The bottom line is that absent Congressional changes to employment-based immigrant quotas and the per country limit improvement in green card availability for highly educated Indian nationals may only be short-lived.

Immigration Blog

L-1 Visas Issued in India Declined by 28 Percent in 2011

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Given the significant and increasing ties between the US and Indian economies, it is not surprising that companies with offices in India seek to transfer personnel into the United States. However, to do so is not a simple matter, especially over the past year.

Recently, I obtained data from the State Department that show L-1 visas (used for intracompany transfers) issued by U.S. posts in India declined by 28 percent between 2010 and 2011. Yet during the same time period, L-1 visas issued at U.S. diplomatic posts in the rest of the world increased by 15 percent. (See the report here.)

L1 visas are used by companies to transfer from overseas to the United States executives, managers and professionals with “specialized knowledge.” It is believed one of the reasons for the increase in denials centers around consular officers in India adopting a new, stricter interpretation of “specialized knowledge.” Immigration law defines “specialized knowledge” as “special knowledge of the company product and its application in international markets” or “an advanced level of knowledge of processes and procedures of the company.” A company must have employed the L-1 applicant for one year or more continuously within the past 3 years.

Request for Information

On October 25, 2011, the U.S. embassy in New Delhi issued a press release with the headline, “US Mission to India Reports 24% Year-on-Year Increase in H-1B Visas Issued.” The press release stated, “The U.S. Mission to India saw H-1B (specialized skills work visa) issuances in India increase 24% between the U.S. Government’s Fiscal Year (FY) 2011 and FY 2010 . . . This 24% increase is tied to the highest ever H-1B application and issuance rates in the history of the US Mission to India, and illustrates the booming nature of US-India business relations.”

Something appeared to be missing from the press release – information on whether L1 visa issuance increased or decreased in 2011. Curiously, the press release contained only a single reference to L-1 visas, stating: “India also remains the leader in issuances of L1 (intracompany transfer) visas, issuing more than 25,000 L-1s in FY 2011 – or 37% of issuances worldwide.”

Yet without the exact figure on 2011 or the data on 2010, there would be no way of knowing what happened to L1 visas over the past year. Many companies had been reporting increased denials but hard data from the US Department of State remained elusive.

The Data on L-1 Visas

In response to a request for data, the State Department sent me the information on L1 visas issued at U.S. posts in India in 2010 and 2011, as well as L1 visas issued at other posts around the world. The results appear in Tables 1 and 2.

L1 visa data table

 Why Is India Different?

The data appear to be proof that something strange is going on in the L1 visa issuing process in India, which the State Department in the past has denied. The release of the data is likely to spur additional inquiries into why L1 visa issuance is declining in India, while in the rest of the world it is rising. Since every U.S. diplomatic post operates under the same set of laws there is so far no easy answer to the question:

Why are U.S. consular officers in India apparently denying a higher proportion of the L-1 visa applications that come to them than consular officers in other countries?