01/05/09
How Long Will I have to Wait in the Quota Backlog?
The following is a discussion about the Employment-Based Immigration Quota system, including definitions and significance of the Quota Backlog and Cut-off Date. It also discusses leading predictions/theories and the benefits of filing under EB-1 or EB-2.A. The Immigration Quota System
The U.S. accepts immigrant visa petitions filed for people from countries worldwide based upon an annual quota system. Each month, the U.S. State Department (DOS) calculates how many immigrant visa petitions were filed for nationals from every country worldwide.
B. The Quota Backlog System
Sometimes the number of immigrant visas which were filed the previous month for people from a particular country exceeds the number of immigrant visas available under the quota system. The quota backlog system permits people to continue filing immigrant visa petitions beyond the quota cut-off and preserves their place in line while they wait for additional immigrant visas to become available under the quota system, but does not permit people to complete their immigration case (by filing Adjustment of Status or Consular Processing) until a quota number is actually available. Each person’s place in line is determined by the date the Labor Certification or Immigrant Visa Petition was filed, which ever is earliest. This date is called the Priority Date.
C. The Quota Cut-off Date
The cut-off date controls how many people waiting in line may apply for Adjustment of Status. Specifically, every 30 days, DOS calculates how many immigrant visa petitions were filed during the previous month. Each succeeding month DOS adjusts the cut-off date depending upon how many quota numbers remain available (if any) based upon the previous month's demand (or lack of demand). The cut-off date is published monthly in the State Department's Visa Bulletin. If immigrant visa numbers are still available, DOS will advance the cut-off date to permit more people waiting in line to file for Adjustment of Status. Sometimes DOS makes a mistake by moving the cut-off date too far forward. When that happens DOS must move the cut-off date backwards to stop the filing and processing of Adjustment of Status applications until more quota numbers become available.
Because no one knows how many immigrant visa petitions will be filed next month, the quota cut-off date has historically progressed and regressed (gone backwards) unpredictably.
D. Quota Cut-off Date: Application to Your Case and Predictions
For purposes of illustration, in January 2007 the EB-2 quota cut-off for people born in China was April 22, 2005. In other words, in January 2007 DOS determined that there are only enough visa numbers for people who filed their Labor Certification or Immigrant Petition on or before April 22, 2005. Only those people may file for Adjustment of Status to complete their case because a quota number is currently available for them. People who filed their Labor Certification or Immigrant Petition at a later date must continue to wait in line.
How fast will the cut-off date progress? The U.S. State Department's web site currently states:
"EMPLOYMENT: Demand for numbers in the Employment Third “Other Workers” category, as well as the China and India Employment Second preference categories, has been escalating. No movement in those cut-off dates will be possible until the current level of demand subsides." http://www.travel.state.gov/visa/frvi/bulletin/bulletin_3100.html
You may plot the trend over a 10-year timeframe at: http://www.travel.state.gov/visa/frvi/bulletin/bulletin_1770.html
Some commentators now predict that the quota backlog will progress very slowly and may regress because there are about 362,000 Labor Certifications at the DOL Backlog Reduction Centers which have been pending for 2 - 4 years. As those cases are processed, more people (who are already waiting in line with an early priority date) will be able to file an application for Adjustment of Status. However, not all of those old cases will be approved and not all of those people will be able or interested in moving forward, so it's difficult to predict. In addition, Congress may act to increase the annual quota or change how the quota numbers are distributed, thereby shortening the backlog.
E. Benefits of Filing Under EB-1 or EB-2
Generally speaking EB-1 will have a shorter backlog (or no backlog) in comparison with EB-2. In turn, EB-2 will have a shorter backlog (or no backlog) in comparison with EB-3. It is very important to discuss your immigration options with an attorney to discover if it may be possible to file a second immigrant petition at a higher level (either EB-1 or EB-2).