Seattle Immigration Lawyer Blog

Most people are confused about green card quotas and how they impact application processing times. Permanent immigration through a relative or work can take many, many years. This is because our legal immigration visa allocation system was established in 1965 and has only been amended a few times since, mostly dealing with how unused numbers spill into other categories. In 1965, Congress changed the visa allocation system from race based to country based calculations, designed in part to prevent any one country from monopolizing available immigration numbers. It is the system we still use today. This post attempts to explain the quota system more simply and provides some references to further explanations and background for what is otherwise a complex subject. The terms "permanent residence" and "visa" are used here interchangeably to refer to green card status obtained by 1) seeking an "immigrant visa" at a U.S. Consulate abroad, or 2) through "adjustment of status" in the U.S. at a USCIS office. There are differences in the two processes, but they both lead to permanent residence and they are based on the same family and work related categories. Both procedures require the applicant to be at the front of the line in the quota system in order to complete the application process and receive a green card.

What is the quota?

The quota is the annual allocation of permanent visas or green cards by country of birth and category. It should not be confused with bureaucratic processing delays or "agency processing times" that have more to do with available agency personnel, resources and priorities. Congress established a finite number of visas per country and per category. However, annual demand for green cards usually outweighs supply, thus creating a backlog. For FY2012 that began October 1, 2011, the annual worldwide limits are 226,000 family-based green cards and 140,000 employment-based green cards.

I tell my clients to think of the quota like a movie theater. Suppose there are only 100 seats in the theater but more than 100 people want to see the movie. Once the 100 seats are sold out, everyone standing in line has to wait until the next show. In the case of visas, that means waiting for the next month, or perhaps the next fiscal year to determine if a new group of visas (tickets) are available. Visas are allocated annually by category and country via a formula determined by Congress. Estimates, (note the word "estimate"), of visa availability are published monthly by the U.S. State Department in the "Visa Bulletin." The State Department refers to categories that are backlogged as being "oversubscribed." Where visas are available, the categories are said to be "current." Oversubscribed categories are referenced by a date, called a "priority date." The priority date is the date in which the applicant first got in line. If the Visa Bulletin shows dates, it means it is issuing visas to applicants who were in line prior to that date. Current quotas are reflected in the visa bulletin by a "C". If visas are not available at all, the category is noted by a "U." Priority dates are discussed in more depth below.

The annual "diversity visa" lottery also has a maximum limit. Generally, more applicants are notified than visas are available because many people will turn out not to qualify or will change their minds. But nonetheless, the demand exceeds the supply and creates a backlog or quota that is also reported monthly in the Visa Bulletin. The State Department has published a more detailed explanation of how the quota system works. For academic readers, data crunchers and historians, there are additional statistical reports on historical data, country, category and regional reports published by the State Department here.

Why is the quota important?

In order to receive an immigrant visa abroad at a U.S. consulate, or in order to apply for adjustment of status in the U.S., a visa must be "immediately available." In other words, the quota must be current in order to complete immigrant visa processing or to file for adjustment of status in the U.S. (Form I485). When there is a backlog in any visa category, the applicant cannot get into the theater and has to stand in line waiting for the next show, using the movie theater analogy above.

Thus, one could have filed initial labor certification (PERM) and/or visa petitions to start a case months or years before, but be unable to file the last set of paperwork due to the quota backlog. The quota need not be current to file PERM or visa petitions to start the immigration process. Another scenario that sometimes occurs is that one may have filed for an immigrant visa or adjustment of status when the quota was current, but while the application was being processed by USCIS or the State Department, the quota retrogressed or became backlogged. In that unfortunate situation, the State Department or USCIS can process the application but cannot grant it until the quota is current again. Therefore, it's important to track the quota in the Visa Bulletin on a monthly basis.

Continue reading "FAQs:Understanding Quotas and Green Card Delays: Why is My Case Taking so Long?" »

USCIS Director Alejandro Mayorkas announced in October 2011 a new "Entrepreneurs in Residence" program to promote job growth by improving existing employment based immigration categories that expand opportunities for job creation. However, we haven't heard any more about this program until today when USCIS posted a job announcement for the tactical team entrepreneurs in residence. Except for a minor attempt to deal with per country caps, and a flawed Start-Up Visa Act that has gone nowhere since its introduction in February 2011, Congress refuses to deal with legislation that would fix the legal immigration system in a way that could foster job growth. Unfortunately, only Congress can change visa numbers and categories and their primary requirements.

Statistics abound showing that immigrants are key to new company start ups and small business expansion. 40% of immigrant entrepreneurs are women, according to a new study. Still other immigrant entrepreneurs are either without status or are not fluent in English, yet earn over $200,000 a year while creating jobs for others, according to a recent New York Times article. Yet individual entrepreneurs are taking matters into their own hands in the absence of needed legislation or administrative revamping of policy and procedures.

One such entrepreneur is Max Marty of Blueseed who has come up with a business plan for an off-shore seafaring floating incubator for foreign national Silicon Valley start-up types. The company would provide office space, supplies and services on a decked-out ship for multiple new companies. Ferry service would be provided to the entrepreneurs to come to the mainland for meetings and conferences within the confines of the B-1 business visitor visa. Although this model needs some serious review by experienced immigration lawyers to make sure temporary visitors meet qualifications for visa or visa waiver status, it's an intriguing idea since the H-1B cap is closed until next year; current policy prohibits self-employment by H-1Bs; and other visa categories for small business owners are heavily scrutinized, are denied or take too long to obtain.

Another creative attempt to deal with immigration policy was started by several professors creating a new "Freedom University" for college bound students in Alabama, home of the most restrictive immigration legislation in the country that prohibits undocumented students from attending college, even if they were willing to pay higher out of state tuition. Freedom University will open its doors to any student that wants to pursue higher education without regard to immigration status.

Back in October, Director Mayorkas and Tom Kalil, Deputy Director of Policy in the White House Office of Science and Technology held a press conference explaining the agency's new and rather creative "Entrepreneurs in Residence" initiative, a minor component of the President Obama's larger StartUp America program. Startup America focuses on "accelerating high growth entrepreneurship across the country" that includes start up funding, mentors and product services. Since Congress refuses to fix the legal immigration system, the Administration hopes to make changes within current statutes and regulations that promote job creation by the immigrant community. This means USCIS can fix regulations, policies and procedures so long as they remain consistent with existing legislative statutes.

Director Mayorkas stated that the "Entrepreneur in Residence" initiative is premised "on the basic principle that our agency would benefit tremendously from having expertise from both the public and private sector join us and help guide our efforts in ensuring maximum use of existing laws." The plan is to have ""information summits' populated by experts from the public and private sector, entrepreneurs, business leaders, academics, ... and other thought leaders." They would come to USCIS to share "the realities, dynamics, and challenges that the business world confronts when dealing with United States immigration system and the visa pathways that are currently available." Immigration practitioners are quite familiar with the disconnect between business visa adjudications and business "realities, dynamics and challenges."

Continue reading "Absent Congressional Action, Can the USCIS 'Entrepreneurs In Residence' Program Fix Business Immigration Better than a Floating Incubator?" »