SUDDEN CHANGES IN INDIAN AND CHINESE BACKLOGS CATCH PUBLIC BY SURPRISE

For the past several years, nationals of India and the People’s Republic of China have faced employment-based green card backlogs that have, in some cases, added up to four years to the immigration process. The backlogs are due to limits on the number of green cards available in each employment-based visa category and per country limits that prevent nationals of one country from getting a disproportionate number of visas.

There were no indications that the pace of Indian and Chinese green card applications has been declining, so it was with great surprise that the State Department announced this month that it would now list all employment categories for Indians and Chinese as current for the month of August 1999. At first, many believed the State Department’s Visa Bulletin with the numbers were mistaken. But the State Department quickly confirmed the dramatic development and offered an explanation.

Ironically, this very good news for many Indians and Chinese is tied to the frustration of others. Regular readers of this newsletter are aware that the INS has basically quit working on adjustment of status applications over the last several months. That has translated into a large decline in the number of green card applications being approved overall since adjustment applications account for two-thirds of all applications (the other one-third are consular processing cases). Since so few cases have been approved, the numbers applied to the visa quotas are down.

The news will be particularly welcome for Indian and Chinese H-1B visa holders approaching the end of their six year limit. With a current priority date, an eligible permanent residency applicant can file a petition to adjust status accompanied by an employment authorization application. Within a 90 day time limit, an adjustment applicant would have work authorization and not have to fear a disruption in the ability to work and remain legally in the US.

According to Charles Oppenheim, the Chief of the Immigrant Visa Control and Reporting Division of the State Department’s Visa Office, the State Department consulted with the Immigration and Naturalization Service and then decided to go ahead and bring the Indian and Chinese priority dates current. Oppenheim told the American Immigration Immigration Lawyers Association that he did not feel it was appropriate to have cut off dates in categories where no demand was being made.

A key question is if and when the numbers will begin to retrogress. Oppenheim noted that this will depend completely on the INS and when they will pick up the pace on processing adjustment applications. That could mean the numbers will be available for several months. However, given the number of actual adjustment petitions pending at INS, it is virtually certain that the numbers will eventually retrogress, possibly further than they were before the dates were brought current.

Because it is not clear how long the dates will remain current, immigration lawyers are advising clients that it is necessary to move expeditiously to submit adjustment applications while this window of opportunity remains open.

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