United States immigration laws are preventing many of the most

talented immigrants in the world from migrating to the United

States. On January 10, 2010, the United States Citizenship and

Immigration Services (USCIS) released new data confirming that some

prospective highly skilled immigrants from one country –

India – may have to wait as much as 35 years to get a

green card, unless Congress takes steps to change the current

nationality based visa quota system and increases the annual

quota.

Under the Immigration and Nationality Act (INA),

140,0001 employment based immigrants, inclusive of

spouses and children, may migrate to this country annually in one

of five general categories.

First Preference Employment Based Immigrants

(EB‐1) : This category is for Priority Workers

and is limited to 40,000 visas each year (28.6% of the worldwide

employment‐based preference level). Any unused visa

numbers from the EB‐4 and EB‐5 categories may

be added to this quota. 15, 184 workers and 21,494 spouses and

children immigrated under this category in FY 2008, which is the

latest available detailed data.

Second Preference Employment Based Immigrants

(EB‐2): This category is for workers in

professions holding advanced degrees or persons of exceptional

ability. The number of visas available annually in this category

are 40,000 (28.6% of the worldwide employment‐based

preference level), plus any visas that are not used in the

EB‐1 category. 34,535 workers and 35,511 spouses and

children immigrated under this category in FY 2008.

Third Preference Employment Based Immigrants

(EB‐3): This category is for skilled workers,

professionals, and lesser skilled workers referred to as

“other workers: The annual limit for workers in this category

is 40,000 (28.6% of the worldwide employment‐based

preference level), plus any visas that are not used in the

EB‐2 category for that year. However, no more than 10,000

visas can be allocated to the lesser skilled “other

workers” in this category. 20,596 workers and 28,303 spouses

and children immigrated under this category in FY 2008.

Fourth Preference Employment Based Immigrants

(EB‐4): This category is for certain special

immigrants such as religious workers, certain long‐time

employees of the U.S. government, citizens of Iraq or Afghanistan

that have worked for the U.S. Armed Forces as a translator for at

least 1 year, some physicians who have residence in the U.S. for a

number of years, juvenile dependents of a court who are eligible

for foster care, some dependents of diplomats and others . It is

limited to a maximum of 10,000 visas per year (7.1% of the

worldwide employment‐based preference level). 5,164

workers and 4,346 spouses and children immigrated under this

category in FY 2008.

Fifth Preference Employment Based Immigrants

(EB‐5): This category is for investor immigrants

who create employment . It is limited to a maximum of 10,000 visas

each year (7.1% of the worldwide employment‐based

preference level). 427 workers and 922 spouses and children

immigrated under this category in FY 2008.

The employment based categories are further restricted by

country of nationality, and no more than 7 percent of each category

can be allocated to any single nationality. Thus, no more than 2800

visas may be initially allocated to a single nationality group in

each of the first three categories. Similarly, no more than 700

visas in each of the last two categories may be awarded to

nationals of any single country.

This seemingly arbitrary across‐the‐board

limitation has proven disproportionately disadvantageous to visa

applicants from more densely populated countries. For example,

under this formula, the maximum number of visas allotted to

nationals of China and India, each with a population of over one

billion citizens – is the same as that for nationals from

smaller states such as Nauru with a population of 10,000 or even

the Vatican, which has a population of only 800 citizens.

In recent years, there have been times when the total number of

available visas in a particular category have not been entirely

allocated. When this happens, these unused visas become available

to oversubscribed countries such as India and China. The complex

numerical allocation system cannot be fully explained here. The

Department of State has a detailed explanation of this process at

its website http://www.travel.state.gov/pdf/Immigrant%20Visa%20Control%20System_operation%20of.pdf

. In 2000, Congress passed legislation which

allowed the use of approximately 130,000 unused visas from the 1999

and 2000 fiscal years to be used in future years when the 140,000

annual limit was reached. This allowed additional visas to be

issued in the EB‐2 and EB‐3 categories. The

following chart shows the number of immigrant visas (green cards)

allocated worldwide on an annual basis as well as the immigrant

visas issued to Indian and Chinese nationals in the two categories

that are oversubscribed – EB‐2 and

EB‐3:

For the past seven years, in my role as the nation's first

Citizenship and Immigration Services Ombudsman and subsequently as

an immigration attorney in private practice, I have requested from

USCIS the data on the total number of pending

employment‐based cases by category, priority date, and

country of chargeability. Common sense dictates that USCIS would

maintain and monitor such statistics in the course of performing

its core immigration functions. Without this data, USCIS would

appear to be violating the very basis of the law that established

the numerical limits on employment‐based immigrant visas.

The responses to my queries have been disheartening at best.

In August 2009 USCIS released a report that, for the first time,

publicly revealed some of this important data that I had been

requesting since 2003. On January 10, 2010, USCIS released an

updated version of the data. USCIS has acknowledged that it has not

included all the data since its systems do not allow it to do so.

The data excluded some pending cases for which visa petitions had

not been approved, even though USCIS accepted the I‐485

applications concurrently. USCIS also excluded applications pending

at field offices, which are apparently on a different database

system, and excluded the pending cases with the Department of

State's National Visa Center (NVC).

DOS recently released data on pending cases at the NVC. The

combined data paint a bleak picture for EB‐2 and

EB‐3 applicants. However, for Indian and Chinese

nationals, the news is even worse.

The following chart shows total combined pending number of

employment based visa applications pending at the two USCIS Service

Centers based on the Jan 10, 2010 report as well as the number of

employment based visa applications pending at the Department of

State's National Visa Center:

As pointed out earlier, Table 2 reflects the estimated total

number of pending applications for employment based immigrant visas

based on the available data. USCIS has always insisted that the

data from the two service centers reflects most of the applicants.

However, in a strange twist of events, on January 28, 2010, the

Department of State provided the author with data on visa requests

from various USCIS offices including the two service centers. The

data reveals that during the first four months of the fiscal year,

USCIS service centers requested 4,200 employment based immigrant

visas while district (field) offices requested 8,400 employment

based immigrant visas. This suggests that field offices may have

many more pending cases than USCIS has previously represented. If

USCIS has a large number of employment based immigrant visa

applications pending at the field offices, as indicated by the visa

requests from field offices in the first four months of this fiscal

year, the ominous predictions for the estimated number of years to

process the EB‐2 and EB‐3 cases for India and

China could rise dramatically.

On February 3, 2010, the Department of State released the

current pool of visa applicants and documentarily qualified

applicants for whom USCIS has already requested a visa number. The

following charts, Tables 3 & 4, replicate the charts published

by DOS and confirm the information provided above. It should be

noted that this set of numbers includes all visa applicants waiting

abroad and registered with the NVC and also includes a portion of

the current pending applicants at USCIS Service Centers shown in

Table 2 and some additional USCIS pending applicants at USCIS field

offices. Unfortunately, neither USCIS nor DOS have been able to

reconcile and account for the numbers reported by USCIS into the

DOS database. For applicants, their lawyers, researchers and anyone

else reviewing the data, including Congress, this situation

presents an environment where there is no ability to hold the

government agencies accountable for their actions or inactions in

this area since data can be manipulated without regard to

legislative requirements:

*See full report at http://www.travel.state.gov/pdf/EmploymentDemandUsedForCutOffDates.pdf

*See full report at http://www.travel.state.gov/pdf/EmploymentDemandUsedForCutOffDates.pdf

The data in Table 3 and Table 4 is used to set the monthly visa

priority dates which is the official

The data in Table 3 and Table 4 is used to set the monthly visa

priority dates which is the official process by which the visa

quotas are allocated. The monthly Visa Bulletin and a more complete

explanation of the Visa Bulletin can be accessed at www.state.gov .

Solution

The immediate solution is full accountability of all pending

applicants for employment based immigrant visas both at USCIS and

DOS. Without accurate data, it is difficult to hold the agencies

accountable for their actions or inactions.

Another solution is to “recapture” lost visas. Between

1994 and 2006, USCIS underutilized the visa numbers by approving

less than the 140,000 employment based applications each year even

though USCIS had more than enough applications pending. Due to the

statutory calculation method (explained more fully by USCIS and DOS

on their websites), USCIS's failure to timely process a

sufficient number of applications resulted in the loss of

approximately 349,000 visa numbers that could not be used in future

years since the law prevents usage in future years. In 2000,

Congress authorized the use of 130,000 these “lost” visa

numbers by what has come to be known as the “visa

recapture” method. However, approximately 219,000 numbers have

not been “recaptured”. The current worldwide pending

cases in all employment based categories is approximately 340,000

applicants. A one‐time recapture of the 219,000 unused

visa numbers could go a long way to eliminating this backlog and

bringing much needed relief to many applicants who currently face

the prospect of becoming residents of the United States after they

retire.

The most important solution is resolving the nationality based

discrimination built into our immigration laws, especially with

regards to attracting the “best and the brightest” talent

regardless of nationality. Congress must act now to end this

nationality‐based discrimination against

would‐be immigrants. Stakeholders in this issue

— including U.S. employers in need of highly skilled

workers— should let their lawmakers know in this election

year that such discrimination is no longer tolerable. It is time to

remove this blemish from our immigration system.

It is imperative that lawmakers review these ominous statistics.

Congress needs to take action to remedy this problem. The problem

was caused in part by inefficiencies and lack of accountability at

USCIS and its predecessor agency, the Immigration and

Naturalization Service (INS); in part by the failure of two

agencies, USCIS and DOS to cooperate and share data; and, in part

by the national origin based discriminatory statute, which is

having an unintended effect of preventing tens of thousands of the

most talented individuals from equally competing for visas that

should be given to those that this country most needs rather than

by discriminating based on national origin.

Footnote

1 This 140,000 varies annually based on a complex formula

of allocation of some unused visas from the family based quotas

from the previous year. Additionally, between 2001 and 2006,

legislation allowed the use of some unused employment based visa

numbers (“recaptured”) from the years 1999 and 2000, when

the Immigration and Naturalization Service failed to process

sufficient numbers of employment based applications to utilize the

visa quota despite having a sufficient number of applications.

Under a complex allocation formula specified in the statute, these

unused visa numbers could not be used in future years until a law

was passed allowing the “recapture” of these

“lost” from fiscal years 1999 and 2000.

Prakash Khatri has a national Immigration Law practice based out

of Washington, DC. He has been practicing law for more than 25

years. He is a nationally recognized expert on Immigration law and

process. He is also the President and CEO of KPK Global Solutions,

LLC, a consulting firm specializing in strategic-level immigration

issues and is “of Counsel” to the Fakhoury Law

Group.

Copyright © Prakash Khatri, 2010. All rights reserved. No

portion of this can be reprinted without the express written

permission of the author.

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