November Visa Bulletin - Singing the Retrogression Blues
Looking at the November 2006 Visa Bulletin, it's hard to know whether to be hopeful or pessimistic.
For the "glass half-full" crowd, there is a lot to be happy about. For Indians in the EB-2 category, the numbers advanced a full six months. In the Worldwide EB-3 category, the advance was two months. Even the EB-2 unskilled preference category moved forward four months. The only significant retrogression in the employment-based preferences occurred in the Schedule A category (primarily registered nurses and physical therapists) which retrogressed over one year.
However, looking at the Visa Bulletin on a month-by-month basis can be deceiving. It is like predicting the weather by examining it on a day-to-day basis. Because it stops raining after a storm does not indicate that the skies will continue to stay clear as we move into the winter.
The wise observer will look at the Visa Bulletin over a longer time frame. For example, compare the November 2006 Visa Bulletin with that of November 2005.
In November 2005, the worldwide EB-3 category was backlogged until March 2001, a little over 4 ½ years. In November 2006, the current priority date for worldwide EB-3 is July 1, 2002, or 4 years and 4 months. At first glance, this seems to be grounds for optimism since the waiting times are decreasing slightly.
However, this does not tell the whole story. Some of this decrease was due to a law enacted in May 2005 which "recaptured" 50,000 visa numbers for Schedule A occupations (Registered nurses, physical therapists, persons of exceptional ability and their spouses and children). However, these 50,000 visas will be completely expended during a few weeks. Schedule A professionals will once again be competing with other persons in the EB-3 category for immigrant visas. This will, no doubt, cause the EB-3 category to retrogress.
Even more troublesome are the 300,000+ labor certifications pending at the backlog elimination centers which are due to be acted upon by the Department of Labor (DOL) within the next 12 months. Labor certifications are only required for certain EB-2 and EB-3 workers. And the 300,000 backlogged applications only apply to the workers themselves. Many of these workers have spouses and children who are eligible to immigrate with them. Even if "only" 200,000 of these labor certifications are approved, the number of additional applicants, counting spouses and children, for green cards under the employment-based categories could exceed 300,000 during the coming year. And there are only 140,000 EB visas available annually.
Therefore, if you already have an EB-3 priority date, keep in mind that when DOL clears out its backlog of labor certifications, you may find that many thousands of persons with earlier priority dates than you will be cutting in line ahead of you.
30 years of practicing immigration law tells me that the EB-3 worldwide quota, absent Congressional action, may increase from a little over 4 years to over 6 years sometime before the end of 2007.
The SKIL (Securing Knowledge Innovation and Leadership) bill which is pending in both the Senate and House of Representatives would help to remedy this situation by (1) increasing the EB quotas; (2) by exempting some occupations from the numerical limitations; and (3) by ceasing to count spouses and children against the 140,000 annual EB cap. (There is precedent for this: Spouses and children are not counted against the H-1B cap.)