By Attorneys Robert L. Reeves and Joseph I. Elias
On September 22, 2010, the American Immigration Lawyers Association (AILA) met with the US State Department’s Chief of Visa Control and Reporting Division, Charles Oppenheim. This is the division tasked with distributing all immigrant visas available in a fiscal year for family and employment-based green cards. It also publishes the monthly Visa Bulletin which announces visa availability in an upcoming month. The Visa Bulletin is closely monitored by immigrants for progression towards their respective priority dates, or place in line for green cards.
The Visa Control and Reporting Division has been carefully monitoring the demand for visa numbers across the various categories and has seen a big uptick in demand for numbers in some areas, with drops in others. What this means is that where there are upticks, these categories can expect retrogression or very slow progress in visa number availability. In contrast, where demand has decreased, visa number availability should improve with a reduction or elimination of visa retrogression.
Mr. Oppenheim notes that there has been a significant drop in demand for family-based (F) categories. Consequently, there has been significant movement forward in these categories. The F2 category is seeing the strongest jump forward. This includes the unmarried children over 21 of lawful permanent residents (F2B), and the spouses and unmarried children under 21 of lawful permanent residents (F2A). The F2A category is experiencing the most dramatic drop in demand and Oppenheim predicts that by the February 2011 visa bulletin, this category may be current or close to being current.
Previously because of the long wait in the F-2A category, usually over 5 years for most permanent residents, it was faster to apply for US citizenship and then sponsor their wives and children. Spouses and single children under 21 of US citizens are not subject to immigrant visa quotas. Visa numbers are always available for them. So, less people applied for their spouses and children, allowing more visa numbers to become available.
As of the writing of this article, the typical wait time for an F-2A priority date to become current is 6 months. Only 6 moths ago, the wait was approximately 4 years! This is fantastic news for permanent residents who have recently married and need to petition their new spouses, children or step children. The long waits usually meant they had to live apart until the permanent resident spouse became a US citizen. If Oppenheim’s predictions are correct, there may be no backlog as of February 2011. Now more than ever, it makes sense for permanent residents to petition their spouses and children as quickly as possible in order to take advantage of the rapid forward movement for the F2 category.
In contrast, Mr. Oppenheim noted that in the employment-based categories (EB), his division has seen a swelling in demand for numbers. This is based on beneficiaries of employment-based green card sponsorship marrying and having children which reduces the total visa numbers available. Each member of the family will require an employment-based visa number, not just the sponsored worker. For example, if four visa numbers remain for a particular EB visa, and a person is second in line, there is no guarantee that this person will get the green card. If the first person in line has a wife and two children immigrating with him, all four visa numbers will be used by that first person in line. Mr. Oppenheim expects employment-based visa numbers to remain oversubscribed and to move slowly forward. His short-term prediction is that any forward movement of priority dates for the next few months in the EB categories will only be a few weeks at a time.
The news from the AILA meeting has been a mixed bag of good and bad news. Family-based categories will experience shorter waits for priority dates to become current, but employment-based will see increases. Until Congress increases visa numbers or the methodology in which they can be distributed, frustrating backlogs will have to be endured. In prior years, employment-based categories experience the least amount of delay. The pendulum has temporarily swung back to family-based visas. Lawful permanent residents should take advantage of this break while it lasts, because, unlike their immigration status, it will not be permanent.