July 2009 Visa Bulletin Reflects Grim News for Employment-Based Applications

June 14, 2009

Those who are patiently awaiting their EB-3 and EB-2 petitions to become current probably check the Department of State's website every month for the newest visa bulletin. Many of you have probably been in the processing queue for several years, are on AC-21 extensions of your H-1B, or are relying on your work permits (EADs), and EAD renewals year after to year so you can keep working legally while you await your "greencard." Some of you are facing situations where your children face "age out" issues and even more of you are awaiting permanent residency so you can then travel legally to visit relatives in your home country. Some may waiting abroad. Nonetheless, you are all waiting and waiting...

The July 2009 visa bulletin released by the US Department of State confirms what we already know - that waiting times are painfully long and slow. But an announcement by the US Department of State's Visa Office to the American Immigration Lawyers Association (AILA), confirms what we have dreaded along: that the situation is "dire" and will amount to extended delays beyond what you have already endured.

The Visa Office has already indicated that the worldwide cutoff date for EB-3 will be set on or around March 1, 2003. With any luck, we may see quick advances in that category near the beginning of 2010, but I'm not counting on it.

Based on current EB-3 demand, India's cut off date in October 2009 will be set at November 1, 2001 and China and Mexico only slightly better March 1, 2003 cut off dates. However, given how tough USCIS has been lately in adjudicating I-140s and even adjustment of status petitions, a lot can change between now and October 1, 2009. You should remember that these estimations from the Visa Office are just estimates.

From bad to worse: the EB-2 estimates for China and India. Come October 1, 2009, the Visa Office expects that the cut off dates for China and India will both be January 1, 2000.

EB-1 for China and India will probably experience a cut-off date in August, too.

As for religious workers who can now file concurrent I-360 and I-485 applications, you are forewarned as well. This year, the Department of State has announced that a surge of applications may also cause a cut off date before September. But since this category is still current, you should take advantage of it now!

This report underscores the need for immigration reform. Without legislative relief, these backlogs will just continue to grow. It's unrealistic to think that employers will continue to play this waiting game. The most talented of workers will be recruited by companies abroad. And if US employers have to, they will continue to outsource to the very professionals who could have generated significant revenue for our government if they were in the US paying state and federal income taxes. They could also be contributing to another program on the brink: social security. --ecf