Commentary: Visa Bulletin Trends

Last week, the government announced rapid progression of green card queues beginning Oct. 1, when the fiscal year begins and quotas reset on green cards, allowing thousands more employment-based immigrants to be eligible to file their green card applications next month.

While this is great news for employees who have languished in the green card backlog for years, employers and employees should prepare for anticipated delays in processing that may complicate the green card path during the wait.

The COVID-19 situation has created some unexpected trends in the green card process in recent months. Since May, the State Department’s Visa Bulletin has shown rapid advancement of the queues for many employment-based categories, in part because so few visas are being issued due to U.S. consulate closures and multiple travel bans. With unused visas carrying over to the new fiscal year, advancements in October are even larger for purposes of green card filing eligibility. For example, Indian nationals in the employment-based third preference category, who typically wait a decade or more for a green card, will see their filing eligibility dates advance by five years. This tremendous progression in green card availability gives hope to many applicants who began the process years ago.

But will hopes for a quick result be dashed by processing delays? The flip side to the green card windfall is that lagging USCIS processing times have created additional challenges and risks, as the agency struggles with budget issues. Although USCIS scrapped plans to furlough 13,000 employees, it specifically warned of longer green card adjudication times. Adjudication delays can carry serious consequences for employers and employees, who must maintain their immigration status during the wait.

Even after an approval, successful applicants would normally receive their physical green card within a few months. But in July, the USCIS Ombudsman’s office announced that the agency faces reduced capacity to print green cards. Despite litigation, significant concern remains that delays in green card issuance will prevent those who have finally achieved lawful permanent resident status from demonstrating proof of this approval, potentially inhibiting their ability to work or travel internationally.

In addition to the personal toll on employees, processing delays create uncertainty and the risk that their work authorization may lapse. Many green card applicants who hold a valid work visa may be ineligible to file for extensions in certain nonimmigrant categories like TN or E, or they may have reached maximum time limits. These employees may face heightened scrutiny and higher likelihood of denial for filing repeated extensions in common work-visa categories. There is also the risk that during lengthy delays, priority dates may retrogress again, requiring that the employee wait even longer for a visa to be available before USCIS adjudicates the case. Moreover, until they get their green cards, many temporary work-visa holders remain subject to the various travel bans and are effectively unable to travel internationally.

This unique time is a reminder to employees and their employers that maintaining valid immigration status, rather than relying on the quick issuance of a green card, is a critical compliance measure. While green card applicants should be encouraged by the Visa Bulletin progression since the COVID crisis began, employers and employees should be aware that obtaining the approval has become an additional hurdle, and they should explore options and strategies for extending employment authorization if their green card is delayed.

This article was written by John Hamill, a Senior Associate in the New York office of Berry Appleman & Leiden LLP.