Use it, don’t lose it: USCIS tries to prevent loss of employment-based visas
The U.S. Citizenship and Immigration Services reports that in the last fiscal year, 66,781 employment-based immigrant (Permanent Resident/Green Card) visas went unused and were “lost.” The USCIS is trying to prevent such a loss this fiscal year, which will end on September 30.
Background
Unfortunately, there is no rollover of unused employment-based immigrant visas from one fiscal year to the next. (By contrast, unused family-based immigrant visas roll over into the employment-based category for the following fiscal year.)
The loss of available employment-based immigrant visas harms employers and foreign nationals. It reduces the foreign workforce in the United States and prevents these individuals from obtaining their ultimate goal – a green card that allows them to remain in the United States indefinitely and to be granted unrestricted employment authorization.
How USCIS hopes to “use it”
Here are the measures the USCIS has taken, or plans to take, to stem the “loss” of visas. (The following is quoted from the USCIS announcement with minor edits. My comments are in bold.)
- Prioritize the processing and adjudication of applications at lockbox intake facilities, the National Benefits Center, service centers, and field offices.
- Continue to apply risk-based interview waiver determinations, which will allow the USCIS to adjudicate most applications without interviews.
- Work with the U.S. Department of State to ensure that the priority dates in the Visa Bulletin provide enough notice for the filing and adjudication of enough immigrant visa and “adjustment of status” applications.
- Allowed applicants to use the Dates for Filing chart in the Visa Bulletin through May 2022, which allowed applications to be filed earlier.
- Provide funding for overtime and supplemental USCIS staff to support employment-based adjustment of status, and underlying petition processing and adjudication.
- Prioritize adjudication of underlying immigrant visa petitions (after accounting for premium processing) to focus on beneficiaries who may receive immigrant visas in FY 2022.
- Eliminate a backlog of non-citizens awaiting biometrics appointments (the backlog was at 1.4 million in January 2021), and create a process to reuse biometrics for certain applicants.
- Redistribute the employment-based “adjustment of status” workload to offices and directorates with more available resources.
- Published communications in January, February, March, and April 2022 notifying the public that the USCIS lacked sufficient inventory in the EB-1 and EB-2 categories and encouraged eligible noncitizens to consider applying for adjustment of status in those categories.
- Established a new process and a dedicated mailing address for requests from employment-based “adjustment of status” applicants who wish to transfer their pending applications to different employment-based categories.
- Publish communications about this new transfer of underlying basis process, encouraging eligible non-citizens to consider submitting requests.
- Publish communications encouraging potential “adjustment of status” applicants to include a valid Form I-693, Report of Medical Examination and Vaccination Record, with their applications. (In a separate communication on June 27, the USCIS advised applicants to get their medical examinations and to file their I-693 with their I-485 Applications, if possible.)
- Identify applications that lack a valid Form I-693 and issue requests for evidence. (The USCIS advised in its June 27 announcement not to send unsolicited I-693s but to get the medical examination and await receipt of the request for evidence from USCIS.)
- In collaboration with the Centers for Disease Control and Prevention, temporarily waived the requirement that the civil surgeon sign Form I-693 no earlier than 60 days before the applicant filed for adjustment of status. (This began December 9 and will expire September 30.)
- Fill 95 percent of the agency’s vacancies by the end of calendar year 2022. “These additional personnel will expand our capacity to process and adjudicate all pending applications, petitions, and requests, including employment-based visas.”
How to apply for and obtain an employment-based immigrant visa
There are two steps that are needed to apply for an employment-based immigrant visa.
First, the foreign national must be the beneficiary of an approved I-140 Immigrant Petition for Alien Workers. That petition in most cases is filed by the Employer-Petitioner; however, in the EB-1 and EB-2, National Interest Waiver, categories, the beneficiary may petition on his or her own behalf. In most categories, the petitioner can use premium processing, often providing a 15-day processing period.
Second, assuming that the applicant’s priority date is current, there are two options to apply for an employment-based immigrant visa:
- an applicant in the United States can apply for adjustment of status to that of a Permanent Resident by filing Form I-485 with the USCIS; or
- an applicant not in the United States can “consular process” – that is, apply for an employment-based immigrant visa at the applicable U.S. Embassy or Consulate, typically in the applicant’s home country. The U.S. State Department, not the USCIS, is responsible for consular processing. Visa appointments at embassies or consulates are still subject to long delays due to COVID-19.
As to either option, an employment-based immigrant visa is not used until the I-485 or Immigrant Visa Application is approved. Therefore, the I-140 petitioner and applicant need to provide the requisite forms and documents in a timely fashion (including filing the I-140 Petition using premium processing, where available). This will help to ensure that the immigrant visa will not be unused.
Conclusion
The USCIS, in its recent announcement, says, “We are well-positioned to use all the available employment-based immigrant visas in FY 2022 despite the higher annual limit.”
We hope that the USCIS will meet that goal and will continue to address excessive delays in processing immigration petitions and applications. The next hurdle is legislative – having Congress address systemic issues such as the lengthy waiting periods for employment-based applicants from China and India in the EB-2 and EB-3 categories.
