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Current issues relating to immigration matters would best be characterized with words such as “quota,” “cap,” “backlog,” “delays” and “unavailable.” The government started its fiscal year, in October 2004, already reaching the cap on H-1b nonimmigrant visas, the most frequently used method for U.S. employers to hire foreign nationals on a temporary basis. This meant that for an entire year, U.S. employers would have a very difficult time hiring foreign national workers. A couple months later, in December 2004, the government announced that certain quotas had been reached with regard to permanent residency. As a result, U.S. employers are also faced with significant delays in processing permanent residency petitions on behalf of their employees. In an earlier article, published just as the H-1b cap was being reached in September 2004, I addressed strategies for “minimizing the consequences” imposed by this cap. In this article, I would like to do the same; namely, provide an understanding of the permanent residency quotas, and suggest strategies to best avoid the consequences. The Immigration and Nationality Act (INA) sets an annual limit on employment-based immigration, of which there is a per-country limit set at 7 percent. This annual limit is divided into preference categories favoring those with more sophisticated training, expertise and skills. The first preference category includes aliens of extraordinary ability, outstanding researchers and professors, and multinational executives and managers. The second preference category includes professionals with advanced degrees and aliens of exceptional ability in science, art or business. The third category includes professionals with bachelor’s degrees, skilled workers with a minimum of two years of training; and then finally, there are “other” or “unskilled” workers, which is generally any job that requires less than two years of training to perform. To distribute immigrant visas fairly, the visa office in the Department of State allocates visas according to both preference category, described above, and priority date. A priority date is issued at the time that the permanent residence process is initiated and is used to determine a beneficiary’s place in the waiting list when immigrant visas are no longer available for a period of time. This unavailability or oversubscription of a preference category develops as countries start to reach their annual quota on immigrant visas, generating a lack of availability of immigrant visas for nationals of that country. This oversubscription first impacts the lesser preference categories, working its way upward, based on demand. The oversubscription first hits counties using a disproportionately large share of immigrant visas in a category. So, for example, an increased demand for immigrant visas by Chinese, Indian, Mexican and Filipino nationals led to unavailability in the last two preference categories, other workers and skilled workers for nationals of those countries. Continued high usage of immigrant visas generated oversubscription in the other worker category for all foreign nationals, but only oversubscription in the skilled worker category for those countries where usage was particularly high. The current unavailability for Chinese, Indian and Filipino nationals is anticipated to spread to all countries and may even impact the second preference category, in fiscal year 2006. This prorated use of visa availability means that high demand by a few countries can have significant implications for all foreign nationals. It is important to note that this increasing unavailability does not impede employers’ ability to start the permanent residence process on behalf of a key employee. Rather, for oversubscribed preference categories, it is only the final step in the process that is delayed. However, this is a critical step, as the inability to file this last step can have serious implications for both the employer and the employee. It is not only that the favorable processing of this final step leads to permanent residency but also that submitting this final application enables a beneficiary to obtain employment authorization, travel abroad more easily, reunite with family members and perhaps even remain lawfully in the United States. Employers should consider more aggressive permanent residency strategies in order to avoid, or at least minimize, the consequences caused by oversubscription of immigrant visas. For example, in order to retain valued employees, employers may need to explore options under the first preference category, which historically was rarely affected by oversubscription. If the factors that make the valued employee so valuable can be articulated to establish the eligibility criteria for the first or second preference, the quota backlog can be avoided or shortened. If an employee cannot be considered extraordinary or outstanding, perhaps they can be considered exceptional, which is a slightly lower evidentiary standard than is necessary for the first preference, but may succeed in moving an otherwise third preference employee to the second preference. A similar strategy may be available for those who while neither demonstrably extraordinary nor exceptional, have a bachelor’s degree and five years progressive post-baccalaureate experience in the specialty. If such experience can be established to be essential to the performance of the job, it may also qualify the petition for the second preference. In addition to, or perhaps in tandem with, strategies to move into higher preference categories, obtaining and retaining early priority dates are also important considerations. As noted above, the priority date is used to determine a beneficiary’s place in the waiting list when a preference category is oversubscribed. A priority date is obtained at the submission of the very first step of a multistep permanent residence process and dictates when the last step of the process is eligible for submission. In some instances, a priority date may be retained from earlier employment-based petitions that did not proceed through final steps, provided the prior petition was not revoked or denied. For a number of years, the availability of immigrant visas for the employment-based categories established in the Immigration Act of 1990 has meant that quota backlogs have generally not been a problem for employers. With the return of quota backlogs, employers need to be aware of possible delays in the process and plan to initiate the process as soon as a foreign national is identified as a key long-term employee. Suzanne B. Seltzer is a partner with Klasko Rulon Stock & Seltzer. She is a member of the National Coalition for Access to Healthcare, as well as co-chairwoman of AILA’s NY-NJ State Department of Labor Liaison Committee. Seltzer is a frequent speaker on immigration options available to international medical graduates, and is the author of “Options for J-1 Clinicians: Expanded Use of the O-1 Visa.” Seltzer obtained her J.D. from Georgetown University Law Center and her B.A. from the University of Pennsylvania.

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