Employment-Based Visa Indecision

Historically, the U.S. government makes approximately 700,000 immigrant visa numbers available each year for those wanting to obtain permanent residency (i.e., their 'green card'). A maximum 25,620 of these visa numbers are allocated to any one independent country in a given year, while a maximum 7320 visa numbers can be allocated to any one colony of an independent country in a given year.

Before applying for a green card, prospective permanent residents must qualify for one of the family-based or employment-based preference categories, and a visa number must be available in one of those categories. Visa numbers are granted on a first-come, first-served basis. If, in any year, the number of people qualifying for a particular preference category exceeds the number of visa numbers allocated to that preference, those for whom visa numbers are not available are placed on a waiting list. They must wait until additional visa numbers are allocated to their preference category before they can complete the process.

Preference Categories

There are five preference categories available for employment-based immigrants, with a total of 140,000 visas allocated across these five categories. The first and/or second steps of the process may be filed with the U.S. Citizenship and Immigration Services ('USCIS'), and will establish a person's 'priority date.' However, the last step cannot be completed until the person's priority date is current.

Thus, the withdrawal frustrated those affected by the government's recent announcement regarding the availability of visa numbers. These applicants not only possessed skills deemed to be in short supply in the U.S., making them desirable additions to the workforce, they also followed the letter of the law in their pursuit of permanent residency through a lengthy and often burdensome process ' and yet they were sent back into limbo when they thought the end was near.

Class Actions

In response to the recent announcement, the American Immigration Lawyers Foundation prepared two class actions, covering: 1) those who filed their applications by July 2; and 2) those who were dissuaded from filing due to the July 2 announcement. Additional pressure ensued from legislators, employers, related organizations and foreign professionals as to the legality, basic fairness and the audacity of the government's actions.

The pressure proved successful, and on July 17, the government once again reversed its decision, announcing that all skilled worker categories would be current for July, and further, that they would remain current until Aug. 17 in order to make up for the lost month. All's well that ends well? Not likely. Backlogs will most likely ensue at the USCIS level with applicants' cases pending for varying lengths of time.

This government debacle is but one example of the broken immigration system in place and why we need positive immigration reform.

Rebecca L. Sigmund is a partner at Powell Goldstein LLP (Atlanta) and manages the firm's Immigration Practice Group. She can be reached at [email protected] or 404-572-6893.

The government giveth and the government taketh away. Two weeks after announcing that most of the employment-based immigrant visa categories would be current on July 1, 2007, the Department of State ('DOS') reversed its announcement by stating that effective July 2, no visa numbers were available for employment-based immigrant visa categories, and further, would not become available until Oct. 1, 2007 (under fiscal year 2008 numbers). When the DOS announced that all categories would be available come July 1, there was an immediate response by applicants who had been waiting years for their 'priority date' to become current so that they could complete the last and long-awaited step of their permanent residency cases. Relying on the DOS announcement, thousands of applicants, their employers and attorneys spent substantial time, expense and effort to ensure July submissions.

The subsequent withdrawal of the visa numbers was startling and unprecedented, and, once again, placed these applicants in a state of uncertainty and further delay.

Some Background

Historically, the U.S. government makes approximately 700,000 immigrant visa numbers available each year for those wanting to obtain permanent residency (i.e., their 'green card'). A maximum 25,620 of these visa numbers are allocated to any one independent country in a given year, while a maximum 7320 visa numbers can be allocated to any one colony of an independent country in a given year.

Before applying for a green card, prospective permanent residents must qualify for one of the family-based or employment-based preference categories, and a visa number must be available in one of those categories. Visa numbers are granted on a first-come, first-served basis. If, in any year, the number of people qualifying for a particular preference category exceeds the number of visa numbers allocated to that preference, those for whom visa numbers are not available are placed on a waiting list. They must wait until additional visa numbers are allocated to their preference category before they can complete the process.

Preference Categories

There are five preference categories available for employment-based immigrants, with a total of 140,000 visas allocated across these five categories. The first and/or second steps of the process may be filed with the U.S. Citizenship and Immigration Services ('USCIS'), and will establish a person's 'priority date.' However, the last step cannot be completed until the person's priority date is current.

Thus, the withdrawal frustrated those affected by the government's recent announcement regarding the availability of visa numbers. These applicants not only possessed skills deemed to be in short supply in the U.S., making them desirable additions to the workforce, they also followed the letter of the law in their pursuit of permanent residency through a lengthy and often burdensome process ' and yet they were sent back into limbo when they thought the end was near.

Class Actions

In response to the recent announcement, the American Immigration Lawyers Foundation prepared two class actions, covering: 1) those who filed their applications by July 2; and 2) those who were dissuaded from filing due to the July 2 announcement. Additional pressure ensued from legislators, employers, related organizations and foreign professionals as to the legality, basic fairness and the audacity of the government's actions.

The pressure proved successful, and on July 17, the government once again reversed its decision, announcing that all skilled worker categories would be current for July, and further, that they would remain current until Aug. 17 in order to make up for the lost month. All's well that ends well? Not likely. Backlogs will most likely ensue at the USCIS level with applicants' cases pending for varying lengths of time.

This government debacle is but one example of the broken immigration system in place and why we need positive immigration reform.

Rebecca L. Sigmund is a partner at Powell Goldstein LLP (Atlanta) and manages the firm's Immigration Practice Group. She can be reached at [email protected] or 404-572-6893.