Changes to Employment-Based Immigrant Visa System Anticipated

In November 2014, President Obama had announced a number of executive actions which he hoped would address the problems with the current U.S. immigration system. Just two months ago in July, the White House issued a report further explaining some of its goals and recommendations. Some of the President's actions have been implemented while others have been challenged in court. Our sources now tell us that the U.S. State Department will be implementing changes that will impact one's wait for an employment-based immigration visa number, in line with the goals of the President's executive actions. Congress sets an annual limit to the number of immigrant visas that can be issued in the family-based categories and the employment-based categories. In addition to having different qualifications for each category, there is a per-country limit overall, i.e., no more than 7% of the overall number of visas can be allocated to people born of a certain country. As a result, for countries where there is a large population combined with a high number of individuals immigrating to the United States, there is a long wait for an immigrant visa number. For example, an individual born in India who qualifies for the employment-based third preference category would still have to wait at least 10 years for an employment-based immigrant visa number to become available. Currently, most employers who want to sponsor individuals for permanent residency, i.e., a green card, will have to go through three steps: (1) labor certification to test the U.S. labor market and prove that there is no qualified, available, and willing candidate for the position being offered to the foreign national, (2) immigrant petition to show that the foreign national qualifies for the offered position and that the employer has the ability to pay the offered salary, and (3) adjustment of status or consular processing whereby the individual finally obtains permanent residency. It is this third step that requires a visa number to be available before one can proceed. The long wait time for a visa is what makes the overall practice a long-drawn out one. If an individual has been maintaining legal status in the U.S. and files for the adjustment of status, one can also have family members join him or her in filing for adjustment of status and filing for an employment authorization and advance parole travel document. Both of these can open up a lot of opportunities for the spouse who has been waiting for years to get to this last step. Our sources report that the State Department may be creating a new category, whereby individuals who may not yet be eligible for a visa number but may still be able to file their applications for adjustment of status and file for the corollary benefits if they meet a new cut-off date category. While individuals will still have to wait for the actual visa number to become available before they are eligible to finish the permanent residency process, they and their dependents can file for the employment authorization and advance parole travel documents much earlier. This is definitely a change from the current process and could impact many individuals, especially China- and India-born individuals who have been waiting a long time for their immigrant visa numbers. Please stay tuned and we will update you with any official reports from the U.S. State Department. We anticipate that the news may come in the next few days as the U.S. State Department publishes its October Visa Bulletin. If you have any questions as to whether and/or how this impacts your permanent resident process, please feel free to contact your attorney with Clark Lau LLC.