The Immigration and Nationality Act (INA) sets forth a complicated and often misunderstood formula for determining the number of foreign nationals eligible for U.S. lawful permanent residence (i.e., a “green card”) in any given fiscal year (FY), further divided by the individual’s particular preference category and country of birth (or country of chargeability).
Foreign nationals seeking a green card are unfortunately well aware of the backlogs and long waits (often expressed in terms of years, even decades for some) that have come to define the green card process because of this allocation system and the high demand for green cards, especially in certain preference categories and from nationals of certain countries. To make matters worse, some foreign nationals who thought their wait was finally over based on the September 2019 Visa Bulletin
met only disappointment when the Department of State (DOS) announced on August 16, 2019 that several preference categories were now “unavailable” for the remainder the fiscal year (FY) 2019.
Specifically, the entirety of the employment-based third preference category (EB-3) and the employment-based first preference category for India (EB-1 India) are now unavailable, meaning it will be at least October 1, 2019 (the beginning of the new fiscal year) before a green card may become available to applicants in these categories. Furthermore, while the employment-based first preference category for China (EB-1 China) is not unavailable, it did “retrogress” (a term used to describe the backward movement of wait times) by 2.5 years due to high demand.
Given the excessive wait times for green cards in most preference categories, employers should be sure to consult with immigration counsel regarding how to maintain their employees’ non-immigrant work authorization for the duration of the wait.