green card

Anyone waiting in the line to adjust their status to that of a Permanent resident has clearly felt the effects of a broken immigration system.  Many applicants have been forced again to start the year off  with a foot in the past due to the lack of movement in the January 2009 Visa Bulletin . Many pending applicants and hopefuls wanting to permanent residence, are stuck in a backlog that may take years to overcome.  Those aliens waiting in the second and third preference categories from China and India have the worst deal yet.   

Many supporters of president-elect Obama are hoping for some type of Immigration Reform legislation in 2009.  Many politicians are aware of the long lines and hold-ups involved in the immigration problem however nothing has been done to solve this problem. One thing for sure is the need for immediate action to provide adequate medical care. Such relief can be found in nurses and other health care professionals who are also stuck in a four year retrogression of visa numbers.

So what can be done to avoid the uncertainty and slothful movement of employment-based priority dates?  Applicants could always consider the EB-5 category for immigrant investors. Annual allocation of visas in the EB-5 category is 10,000, not less than 3,000 of which are reserved for investors in so-called Targeted Employment Area’s and 3,000 reserved for investors in USCIS designated Regional Center’s (“RC’s).  There is no current backlog in the EB-5 category, nor has there ever been. For more information on how you may qualify in the EB-5 Category contact our office. 

Many immigrant visa applicants often find themselves unsure of what will come next at the end of their immigration process. The Department of State has taken time to clarify the procedures following the Adjustment of Status. Once a case has been finalized, the Officer will submit a request for visa authorization to the Visa Office using the IVAMSWEB automated system.

With this program the system is able to verify,  that the applicant’s priority date is within the applicable cut-off date for that month. When this request  has been made three outcomes can occur: 1) it is Authorized,2) it is identified as a “Duplicate” request, meaning that the A-number was previously authorized, or 3) it is beyond the established cut-off date and is placed in the “Pending Demand” file.

Why do we have such a major employment based immigrant visa backlog? According to the Immigration policy center each year, the Department of Homeland Security fails to issue all of the “green cards” allocated for that year. Under current law, the visa numbers do not “roll over” to the next year and the unused visas are lost. Unused or lost visa numbers result in longer delays for US citizens or legal residents to reunite with a close family member or in a delay for a US business to get a needed worker.

H.R. 5882 is a bipartisan bill co-sponsored by House Immigration Subcommittee Chair Zoe Lofgren (D-CA) and James Sensenbrenner (R-WI). This modest piece of legislation would simply permit the “recapture” or use of visas that have gone unused in past years due to bureaucratic delays. The visas would be issued to qualified family-based or employment-based legal immigrants.

Recently, the American Immigration Lawyers Association (AILA) issued a section-by-section analysis of the Visa Efficiency and E-Verify Extension Act of 2008. In summary this bill recaptures unused family based and employment based visas from fiscal years 1992 through 2007 and allows unused family and employment based visas in future years to automatically “roll over” to the next fiscal year. Although the maximum number of visas issued is mandated by law, the actual number of visas issued in a given year can be significantly lower based on processing or other bureaucratic delays. In order to ensure that all authorized visas are actually used, the Act permits calculation of the final number of visas available that takes into account unused visas from past years.  Additionally, the bill reauthorizes the Department of Homeland Security’s (DHS) electronic employment eligibility verification program known as “E-Verify.” The Act provides a 5 year extension of the voluntary program and it also includes provisions that ensure that DHS provide timely reimbursements to the Social Security Administration (SSA) for the resources utilized to maintain the E-Verify program.

DHS Secretary Chertoff Announces that USCIS will begin issuing Employment Authorization Documents with a 2 year validity period for individuals with green card applications pending.

On June 9, 2008, Homeland Security Secretary Michael Chertoff announced at his State of Immigration Address that the Department of Homeland Security (DHS) will be extending the validity period of the employment authorization documents (EAD) that are issued to individuals who applications for adjustment of status to lawful permanent resident status (“green card”) pending.

Currently, such individuals are granted EADs with a maximum validity of one year. According to Secretary Chertoff, beginning later in June 2008, the U.S. Citizenship and Immigration Service (USCIS) will start issuing EADs with a validity period of two years for individuals who have adjustment of status applications filed that are expected to be pending for more than one year.

U.S. employers, education institutions, and trade associations have signed on to show their support for three bills introduced into the House of Representative which they believe will address the many shortcomings in the employment based green card system. The three bills include: H.R. 6039, which aims to exempt highly educated, foreign-born students earning an advanced degree in science, technology, engineering or mathematics from a U.S. university from the annual EB green card limit. This change would help U.S. employers retain talented individuals in the U.S. workforce. In the U.S. foreign nationals comprise of nearly half of the master’s and 70 percent of the Ph.D.s in electrical engineering from U.S. universities. H.R. 5921 will help put an end to multi-year wait times by eliminating unduly restrictive per country limits on EB green cards; and finally H.R. 5882 will try to help reduce visa backlogs by “recapturing” EB green cards from prior years that went unused due to government processing delays and making them available immediately to those who meet the requirements.