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EB2 Employment Based Visa Categories in Retrograde

The American Immigration Lawyers Association today posted a practice advisory as a result of comments made this morning by Charles Oppenheim, Chief of the Visa Control and Reporting Division at the U.S. Department of State. According to AILA, Oppenheim projects that in either May or June the EB2 employment based visa categories will retrogress almost three years from the May 2010 date listed in the April Visa bulletin just released this past Monday to “around” August 2007. This would not be good news for either petitioners or their employer sponsors.  Those with existing H visa approvals who were hoping for continuing improvement in the EB2 categories would find themselves falling further behind in the wait for the ability to adjust to permanent residents. Those affected by such retrogression are by and large already here in the U.S. working as productive and highly valued members of the U.S. workforce.

Generally, these are people who have cleared the first hurdle in our cumbersome immigration process and are waiting in line for a visa to appear based upon the allotment made each year per country.  The uncertainty posed by the changing visa availability is frustrating to both the individuals and their employer since no one knows when, or if, the person will be able to obtain the permanent status necessary for long-term employment. Those seeking EB2 visas are highly skilled persons often working in research and development projects where such unpredictability of the individual’s ability to complete the project is unsettling at best.  A three-year retrogression will chill the willingness of both employers and skilled individual to even start the process today, thereby denying the U.S. of highly talented people critical to the economic recovery and maintaining the U.S.’s competitive edge in the word market place. Opppenheim also predicted the all EB1 visas allocated for 2012 will be used meaning none will be left to “spill down” to help elevate part of the EB2 problem.

Bills have been introduced in Congress to eliminate the per country visa quota system for skilled workers. It’s time Congress takes a hard look at the impact these arbitrary numbers and the delays have on the country and the people involved.