Immigration Backlogs

Q: I understand that the H-1B cap will be reached soon? What does this mean to me?

A: The H-1B cap of 65,000 will probably be reached either in late October or in November. When the cap is reached, no more H-1B petitions may be filed for work starting before Oct. 1, 2005. There are, however, some exceptions. For example, if you are presently in H-1B status, you may extend your status or change your employer. Persons petitioned by universities or by university-related or university-affiliated non-profit institutions are also exempt from the cap. So are persons petitioned by governmental or non-profit research institutions.

Q: Is it true that the employment-based categories may again start to backlog?

A: Unfortunately, the answer is yes. The State Department has predicted that the EB-3 category may start to backlog as early as January 2005. Based on past experience, we believe that the first countries to develop backlogs will be India, China, and the Philippines, although we expect the worldwide EB-3 category to backlog as well. And we predict that it won’t be long before the EB-2 category also begins to develop a backlog.

Q: What will happen to the family-based preference categories this year?

A: According to the State Department, there will be very little forward movement in the family-based categories this year, and towards the end of the year, the family-based numbers are likely to retrogress.

Q: Are there are any categories that will not be adversely affected during the coming year?

A: “Immediate relatives” of U.S. citizens will not be affected since they are not subject to numerical limitations. Immediate relatives include spouses, parents, children, and certain widows of U.S. citizens. A parent may be petitioned by a son or daughter 21 or older.

Q: I am a physician. Is it going to get easier or more difficult for me to get a green card?

A: If pending legislation passes the Congress and is signed by the president, it may become easier for certain physicians to obtain permanent residence. The law would extend the Conrad 30 J-waiver program for physicians for two years. Other provisions of the legislation would permit federal agencies to sponsor specialists as well as primary-care physicians, and for states to sponsor up to five physicians per year who do not work in HPSAs or MUAs.

Q: Are Immigration Service waiting times still increasing?

A: For the first time since 2001, some processing times seem to be decreasing. Some of our EB-2 clients in California are getting their cases approved in 90 days or less, while some of our EB-3 clients are obtaining permanent residence in a little over one year instead of two to three years.

Carl Shusterman is a former INS Trial Attorney and a Certified Specialist in Immigration and Nationality Law. He manages a five-attorney practice based in Los Angeles. (213)

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