Visa Bulletin Trends for April 2019 and a Review of the Employment Based Immigrant Visa System
A Review of the Employment-Based Immigrant Visa System
The visa bulletin continues to have a number of unusual trends in the employment categories as we head into April of 2019. As a refresher, our employment system contains 5 categories, named employment based 1 through 5, or EB-1 through EB-5. The first three categories are the most common, with a lower number reflecting a more highly skilled position among these categories. Individuals in the higher-skilled categories generally have a shorter wait or no wait to become permanent residents based on two factors: there are less individuals who qualify for the most specialized categories (not always the case though as we see below), and EB-1 and EB-2 have the most favorable “spill-over” rules (more on that below).
However, it is not quite that simple. In total, our immigration laws allow for 140,000 employment-based immigrant visas each year, which includes dependents of the principal applicant (spouses and children). EB-1, EB-2 and EB-3 are each granted 40,000 per year (or 28.6% of the total), while EB-4 and EB-5 each are granted 10,000 per year (or 7.1% of the total). A review of each category is below:
| EB-1 | “Persons of extraordinary ability” in the arts, science, education, business, or athletics; outstanding professors and researchers; multinational managers and executives. |
| EB-2 | Members of the professions holding advanced degrees, persons of exceptional abilities in the arts, science, or business, or national interest waivers (NIWs) |
| EB-3 | Skilled workers with at least two years of training or experience, professionals with college degrees, or “other” workers for unskilled labor that is not temporary or seasonal. |
| EB-4 | Certain “special immigrants” including religious workers, employees of U.S. foreign service posts, translators, former U.S. government employees, and other classes of noncitizens. |
| EB-5 | Persons who will invest $500,000 to $1 million in a job-creating enterprise that employs at least 10 full-time U.S. workers. |
To further complicate the calculation, foreign nationals from the same country are limited to 7% of the total allocation of employment-based visas. EB-1 receives any unused visas from the EB-4 and EB-5 categories, while EB-2 receives any unused visas from the EB-1 category (and EB-3 receives unused EB-2 visas). Visas can also spill over from worldwide demand to individuals from countries with particularly high demand, like India and China. Spill-over rules are only of course beneficial when there are in fact unused visas, which is not the case in many categories.
Current Unusual Trends and Predictions for the Visa Bulletin
The visa bulletin is released by the Department of State each month (link here to April 2019), and gives approximate wait times in each category. It also lists wait times for countries that have exceeded their per country 7% limit, causing even longer wait times for certain individuals. These countries include China, India, El Salvador, Guatemala, Honduras, Mexico, Philippines and Viet Nam.
The American Immigration Lawyer’s Association (AILA) checks in with the Department of State and gets some informal commentary on the trends in the visa bulletin. From this most recent meeting, here is what was shared:
- Employment-based visa demand remains very high, particularly in the EB-1 category which has already used 25% more visas than the EB-2 and EB-3 categories for the first 6 months of the fiscal year (remember, the fiscal year starts on October 1). Based on this high demand, DOS predicts either no movement or maybe an advancement by one month in the coming months for the EB-1 category. It is unclear whether this high demand is a temporary bubble that will soon dissipate or if it will continue.
- Because demand is high across the board, India and China have even longer wait times because they traditionally benefitted from unused EB-1 visas from other parts of the world. Consequently, no movement is expected for China and India in the EB-1 category if and until worldwide demand for EB-1 visas slows down. This is unlikely as that 2019 January and February EB-1 use exceeded EB-1 use for October through December of 2018 (first quarter of fiscal year 2019), which shows that demand is further increasing.
- Visa usage for EB-1 worldwide increased by 15% for December and January with no signs of usage declining. Either no movement or a one-month advancement is predicted for EB-1 worldwide in the coming months. Because of this excessive demand, EB-1 worldwide is not current, while EB-2 and EB-3 are current. We call this an “inversion”, since the highest-skilled actually have a longer wait.
- EB-2 worldwide has used about half of its allocation for the first half of the fiscal year, therefore, it is predicted that EB-2 worldwide will remain current for the rest of the fiscal year. This is not the case though for China and India, since they still suffer from the per country limits, so have substantially longer wait times even in this category. EB-3 worldwide is also expected to remain current.
- EB-2 and EB-3 India remain flip-flopped (or inverted), meaning there is actually a slightly shorter wait in the EB-3 category for Indian nationals than the EB-2 category (which is more highly skilled). The EB-3 category is also advancing more rapidly, by a month each month, while EB-2 India only advanced 3 days. Similar movement patterns are expected in the future. Because EB-2 worldwide is targeted to use all of its visas, there will not be much if any spillover into the EB-2 India category.
- In contrast to India, EB-2 China is ahead of EB-3 China, and EB-2 is advancing more quickly (3 months) than EB-3 (3 weeks). Similar movement patterns are expected in the future.
In summary, the two most notable inversions continue (where a higher skilled category actually has a longer wait than a longer skilled category). These are EB-1 worldwide, which has a final action date of February 1, 2018, while worldwide EB-2 and EB-3 are current; and EB-2 and EB-3 India, with EB-2 India have a longer wait than EB-3 India.
We hope this insight is helpful and provides some idea of where you may stand in the employment immigrant visa process. If you are interested in starting an employment-based immigrant case, you can find more information here. Please feel free to give us a call at 303-972-6985, or email us from our contact page here, to get started.