I had a very upset client contact me this last week. He was angry . . . at the Visa Bulletin. He could not understand how, after the start of the new fiscal year, there was essentially no movement in the visa numbers. I tried to calm him by telling him that he just needed to be patient. Then I realized how patronizing that sounded. How much longer did he need to wait? He has an approved immigrant visa petition (EB-3) with an early 2005 priority date in the worldwide category. So, I decided to try to figure out when he might actually get his green card. I ask that you bear with me through this process. This is a LONG post, but one I think you will appreciate reading.
I have to warn you now, this math is a shot in the dark. I do NOT have all of the numbers of pending and approved cases in each category of employment based immigration. However, some estimate, based upon some pretty good numbers, is better than mere guesswork. Let me walk you through this analysis.
However, I first ask you to forgive me in advance, math is the reason I went to law school. Also, the USCIS simply has not released clear numbers (possibly for fear of letting folks know exactly how long their wait will actually be).
My focus for this analysis will be in the EB-2 and Eb-3 categories, since it is in those categories that our clients are most interested. There are four basic numbers we are looking for, NONE of them are easy to find. Let’s discover the basic numbers we will be using:
First,how many approved I-140 cases are awaiting a visa number? According to AILA’s recent liaison meeting with DOS, there are 198,186 “case ready” I-140 petitions awaiting visa issuance, in the EB-2 (52,584), EB-3 (139,737) and EW (5,865) categories. Case ready means (as best as we understand), that as soon as the petition is current, the Adjustment will be approved or consular processing will begin. Obviously, the EB-2 numbers are only for India and China.
Second, how many pending I-140 cases are there at the Service Centers awaiting adjudication? According to the June 2009, USCIS Production Update Report to Congress, USCIS had 85,970 pending I-140 cases awaiting adjudication. Unfortunately, USCIS does not break out the I-140 cases in this report between EB-2 and EB-3. These are the most recent numbers I could find.
Third, how many pending I-140 cases are at the District Offices? I have no idea! I cannot locate anywhere the numbers of cases at the local USCIS offices. No one knows. Really. There is no report that I can find where this number has been released. And, frankly, I do not believe that USCIS has an accurate count on this either (I do pray they get such a count soon).
Fourth, how many pending labor certifications are there at the DOL? This number is actually pretty sure. There are 62,100 pending labor certifications as of the September 22
stakeholder meeting with DOL (not counting pending appeals). Unfortunately, again, we do not know which of the categories (EB-2 or EB-3) the cases will fall under.
Now, it is time for the math. Assuming all pending Labor Certifications and pending I-140s are approved (yes, I know some will be denied and some are duplicates), there are at least a total of 346,256 individuals with approved or soon to be approved petitions awaiting green cards, not including their families. If we assume an average family size of 4 people (I believe this is a safe assumption), there are 1,385,024 people waiting on employment based green cards in the EB-2 and EB-3 categories.
I know the number is huge! And next we have to try to fit that number into the two separate EB categories. Unfortunately, we have two problems in doing this. The first problem we have is that we do not know how many of these I-140 cases are in the EB-2, or EB-3 categories. So, let’s use a little deductive reasoning here. Using experience and best guessing based upon the division we already know about in the numbers of cases from the DOS, lets say 26% are EB-2 (360,162), and 74% are EB-3 (1,024,917).
The second problem is that we do not have a per country breakdown. (I hope the USCIS has that breakdown). How to account for this? Again, let’s estimate based upon the DOS numbers, that India accounts for 70% of the EB-2 and 39% of the EB-3 numbers and that China accounts for 30% of the EB-2 and only 3% of the EB-3 numbers and the rest of the world accounts for 58% of the EB-3 numbers.
We also know the maximum numbers available in any given year for all family and employment based categories is 25,630 (with some caveats), and that there are only a total of 80,000 employment based immigrant visas in the EB-2 and EB-3 categories combined (with some flow down from other categories).
You can see we have leaped, jumped, guessed, and assumed our way to the follow conclusions:
India EB-3 wait for permanent residence for a labor certification filed today: 15.8 years. This generous estimate comes from the fact that an estimated 399,717 Indian Nationals waiting for 25,630 visas a year. This estimate completely ignores the possible immigration of any family based immigrants which would subtract from this total and increase the wait time, and the number that would flow down from other immigrant visa categories, so the wait time is probably longer.
China EB-2 wait for permanent residence for a labor certification (or NIW) filed today: 4.1 years. This estimate comes from the estimated 108,048 Chinese Nationals waiting for 25,630 visas a year. This estimate completely ignores the possible immigration of any family based immigrants that would subtract from this total and increase the wait time, and the number that would flow down from other immigrant visa categories.
Worldwide EB-3 wait for permanent residence for a labor certification filed today: Well, there are 594,451 people waiting in this queue. The limiting factor here will be the 80,000 annual limit on employment based immigration. Excluding per country limits and flow down from other employment based immigrant visa categories, this is at least a 8.1 year wait.
And these waits are from when the person STARTS the green card, not when they come into the United States.
I can now tell my client a waiting date based upon, at least, some real numbers. But, I will still be wrong. The dates are not accurate, but at least it is not made up out of whole cloth. But we now all understand that we cannot look at the Visa Bulletin and actually determine how long the wait is.
The point of this whole exercise, besides telling my client how long he still might have to wait, is to point out the consequences of these numbers.
Line? What Line? These are employment based immigrants. Every single one has a job offer, an employer, and a certification that either there are no qualified, willing and able US workers for the job, or that the individual is
so good, we do not even have to test the labor market. We need these people. We want these people. How many do you think will now just give up and go home?
This delay in legal, employment based immigration is a crisis for America. If you are an intending immigrant, and your immigration option is employment based, do you have the patience the wait 15 years for your green card? Can you do better in Australia, Canada, or even back home in your home country? What is the cost to our future competitiveness of a broken legal immigration system? What is the cost to U.S. innovation?
I believe these numbers have a purpose. The purpose is immigration reform, and not just a legalization. We all know that a broken legal immigration system causes illegal immigration. We need to fix the legal immigration system now! We need to modify the process, significantly shorten the wait and increase the numbers to meet the demand. We need to not include family members in the total calculated visa numbers. And, Yes, we need to make these change even in a struggling economy. We must maintain the great benefits that positive, focused employment based immigration has delivered to America. The reality is that Congress must act to help save the future of American innovation and economic growth. And, they must do it now.
I had a very upset client contact me this last week. He was angry . . . at the Visa Bulletin. He could not understand how, after the start of the new fiscal year, there was essentially no movement in the visa numbers. I tried to calm him by telling him that he just needed to be patient. Then I realized how patronizing that sounded. How much longer did he need to wait? He has an approved immigrant visa petition (EB-3) with an early 2005 priority date in the worldwide category. So, I decided to try to figure out when he might actually get his green card. I ask that you bear with me through this process. This is a LONG post, but one I think you will appreciate reading.
it's very nice………
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home based work
Care to keep America GREAT?? Gene pool et al.
Simple solution:
give out green cards to the smart, educated and the rich. a-la EB category.
Give out 500 thousand temporary work permits valid for a year to day workers.
Why do people not deem this program to be fraudulent?
For applicants, USCIS defines fraud as "a willful misrepresentation, falsification, or omission of a material fact."
USCIS appears to have purposely hid the number of applications to hide the lengths of time where a benefit would be produced. (Twenty years in some cases.) Only when they were FOIA'd did they reveal this information. Many applicants would have not spent their money if they had known the length of time it would take. Their omission of this data constitutes fraud by their very own standard.
This sums up all the pain taken by Legal immigrants who pay taxes, obey all rules, waiting for decades. Most of the immigration talks these dates have been focused on Illegal immigration but no one have bothered about Legals who have more potential of starting companies, employing Americans, Providing innovation through research helping keep America on TOP.
Attention also needs to be brought about the discriminatory Country limits on Employment based immigration. We don't discriminate people on their birth of origin or nationality while hiring them on a job, Why discriminate them for Legal employment based immigration.
Chuck,
This is a great article pointing up a serious problem. The numbers are truly terrible.
Of more concern to me–line or no line–is that the employment-based quota is effectively just Chinese (and Indian) Exclusion Act Lite.
The length of the line is a matter worth discussion as a matter of policy, but a policy that overtly discriminates on the basis of country of birth is certainly not based on merit. Such a discrimatory policy is–or at least should be–un-American.
Regards,
Cletus Weber
I am a Chinese EB1A with a priority date of 2006 with 2 approved I-140, one NIW and one EB1A. My I-485 has been pending as initial review for more than 2 years at Texas Center (TSC).
Chuck, thanks for this. A key element of missing data is approved I-140s that have not resulted in I-485 at all or have I-485 not yet been found "case ready." People cannot file for adjustment if visa number is not available. Not everyone piled in during the craziness of summer 2007, and since then plenty of I-140s have been approved that have not resulted in I-485.
The State Department has tried to give some sense of the pipeline in its March 2009 Visa Bulletin at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4428.html. But State can't see USCIS' EB pipeline, since most I-140s indicate the beneficiary will apply for adjustment and thus USCIS keeps the petition rather than forwarding to USCIS.
USCIS has made a stab at transparency, but it is probably more misleading than helpful. For details, see my article, "Restrain Thy Hope About Employment Based Visa Numbers," at http://www.immigration.bakerdonelson.com/index.cfm?fuseaction=viewContentUpdate&contentUpdateID;=76&ContentID;=524&CatID;=74&SectionID;=41.
One solution to the data problem would be for USCIS to forward every approved I-140 petition to the National Visa Center, which then would have a clear view of the pipeline for visa numbers (as it has for family, where 90% use IV processing), but since most EB immigrants will adjust that would mean a lot of file shuffling back to USCIS when I-485s are filed.
Thanks for addressing an important topic.
Best regards,
Robert Divine
"If we assume an average family size of four people". This assumption does not make sense. I stop reading the author's analysis when I saw that assumption, as I seriously suspect there are many other mistakes he could also have made in his anaylsis.
Great article. Sums up the pain in every LEGAL employment based immigrant.
But will the people, whos opinion counts, will ever understand this?
Sad to see that the most advanced(in all aspects) county on this earth allow hard working , law abiding people to suffer knowingly.
For EB-2 for India, the estimated wait would be at least 8 years based upon current numbers.
As to the questions AILA should ask USCIS, I agree, we should, and I do know in the past that we have asked. The problem I believe is that I am not convinced that USCIS knows the actual numbers.
Finally, as to the numbers, don't forget there are at least four places to get the number from. You have to add all of the together to an estimate on what is pending. Don't be fooled by wishful think. Remember, DOL still had more than 300,000 labor certs in the system, unprocessed in 2005 (as a result of 245i) when it changed to the PERM system. Those numbers are now working thier way through the system like a snake swallowing a pig.
Regards,
Chuck
It is an excellent point that every one has heard of "Illegal Immigration" but very few are aware of the ignoble attacks on "Legal Immigration", waged with alacrity by the Immigration Services, manifested by requesting originally submitted documentary evidence, more than once, or sending three consequtive requests for documents, instead of one, etc. It reminds me of "Nixon's dirty trics squad." The US needs comprehensive Immigration reform. It also need to theach those charged with the execution of the Immigration laws essential ETHICS in the fair application of such laws.
Fitnesspro
AILA need to ask the question to DOS and USCIS about the data released on September for Pending I-485 applications.
****IF it includes Primary or All.
AILA should post the questions to DOS and USCIS in stakeholder meeting.
1. How many pending employment based I-485 ( Not approved) irrespective of pre-adjucation or review or RFE as of October 1st 2009 / Earliest possible date? Should include all the Applications ( Dependent and Primary).
2. How many Approved employment based I-140 Applications with no COS applied ( I-485 ) ?
3. AILA need to ask the Spillover question , How much was in 2009? & how they allocated?
If they get the answers for the Above , most of the client of AILA members would not call them regularly.
Based on the above calculations, what will be the average wait time for EB2-India applicant? It will definitely be more than an EB2-China applicant; if a person from EB2-China has to wait for 4 years, I think the wait for a corresponding EB2-India individual will be definitely more than 6 years at the least.
Please don't take it personally , you are a lawyer and you know better than me.
According to the last release I-185 Pending for Eb1 , Eb2 , Eb3 are close to 240K. That includes 2009 filling until August 25, 2009.
There could be another 20-30K Approved I-140 Petitions for Employment based ( Assumption due to long waiting PERM ).
3 dependent per Primary Application would take it to : 120K awaiting for I-485 to be filed.
So the total is 240 + 120K for all the category and all the group.
In a year they get 140K if they would have used all the Visa number for FY 2009 including spillover then the queue should be over in next 2-3 Years without re-capture.
all the above is based on USCIS data which does not say whether the PENDING I-485 includes PRIMARY or All.
This is an excellent article that should be required reading for every member of Congress and everyone else with any interest in immigration policy. Most people do not realize that illegal immigration is the direct consequence of a broken legal immigration system.
However, an even bigger problem is that a large part of the American public has been brainwashed by anti-immigrant demagogues who do not want any immigration at all, legal or illegal. There needs to be greater understanding of the positive economic benefits from immigration and the negative consequences of forcing productive immigrants who are providing jobs for Americans through their own businesses or innovation to leave the US.
A friend of a friend of mine, who had stayed illegally in the US for a number of years, was recently forced to close down his construction business in Texas in order to return to Mexico (with his USC wife and children) while waiting for his hardship waiver to be approved. It has been pending for more than a year without decision, while his family struggles along without his being able to support them.
I do not know how many Americans were thrown out of work when his business was forced to shut down. Our insane emphasis on "enforcement-only" immigration policy, mainly in order to appease racist white sentiment, is hurting America economically as well as morally.
Roger Algase
Attorney at Law
New York NY