Green Card Backlogs & the Visa Bulletin: Breaking Down the Basics for Employment-based Applicants

Securing a green card through employment-based immigration often involves dealing with the complex and changing situation of visa backlogs — a critical bottleneck that delays many from realizing their American dream.

 The U.S. sets annual limits on the number of employment-based immigrant visas (green cards), leading to backlogs when the demand outpaces the supply in categories like EB-1, EB-2, and EB-3. Being "subject to a backlog" means your "priority date" isn't current yet, delaying your ability to file an Adjustment of Status application or to be scheduled for an Immigrant Visa interview abroad.

 This article breaks down the Visa Bulletin and green card backlogs, offering straightforward guidance for anyone navigating this essential last step in their employment-based immigration process.

The Visa Bulletin is a monthly publication by the U.S. Department of State that provides an updated waiting list for immigrants who are subject to numerical limits on immigration to the United States, particularly in the family-sponsored and employment-based categories. The Visa Bulletin is a crucial tool for immigrants and their attorneys to understand where they stand in the queue for the green card.

 The Visa Bulletin breaks down the availability of immigrant visas according to:

1. Priority Date: The “priority date” serves as your “place in line” within the backlog, and it is established either on the date your PERM Labor Certification was filed with DOL, or if exempt from PERM, the date your I-140 petition was filed with USCIS.
2. Per-Country Caps: There limits on the number of green cards that can be issued to natives of any single foreign country in a fiscal year to ensure that green cards are distributed broadly and does not favor any one country too heavily. Foreign nationals born in India and China often see longer backlogs due to the high volume of applicants from these countries.
3. Preference Categories: Different categories of employment-based immigrants are allocated different numbers of visas each year:

• EB-1 (First Preference): This category is reserved for individuals with extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; and multinational managers or executives who have been employed by the same employer abroad and are being transferred to the U.S. The EB-1 category typically has shorter waiting times due to its high qualification standards; historically, the Visa Bulletin typically shows that visas are available without significant backlogs, except for applicants from countries with high demand.
• EB-2 (Second Preference): Targeted at professionals holding advanced degrees (beyond a baccalaureate degree), or persons with exceptional ability in the sciences, arts, or business that will substantially benefit the U.S. national interest. The EB-2 category can experience backlogs, particularly for applicants from countries with a high volume of applicants. However, it's generally faster than the EB-3 category. National Interest Waivers (NIW) are part of this category, allowing some individuals to bypass the labor certification requirement if they can demonstrate their employment in the U.S. would greatly benefit the nation.
• EB-3 (Third Preference): This is for professionals holding jobs that require at least a U.S. bachelor's degree, for skilled workers holding jobs requiring at least two years of training or experience, and for “other” workers in positions that require less than two years of training or experience. This category generally faces the longest backlogs, particularly for applicants from countries with a high volume of applicants, due to the broader eligibility criteria and higher demand.

Understanding the Visa Bulletin's structure—priority dates, per-country caps, and preference categories—lays the groundwork for interpreting the two crucial charts for employment-based visa applicants, which ultimately sheds light on your position in the queue for a green card.

Understanding the Visa Bulletin's structure—priority dates, per-country caps, and preference categories—lays the groundwork for interpreting the two crucial charts for employment-based visa applicants, which ultimately sheds light on your position in the queue for a green card.

The Visa Bulletin features two main charts for employment-based visa applicants:

• The “Final Action Dates” chart indicates when the physical green card can actually be issued based on an applicant's priority date. In the employment-based context, if your priority date is on or before the Final Action date listed in the Visa Bulletin for your specific category and country of chargeability, your application is ready for the final adjudication phase. This means USCIS can approve your Adjustment of Status application and issue the physical green card if you’ve filed an I-485 application from within the U.S. Alternatively, if Consular Processing abroad, you will be scheduled for your final immigrant visa interview at a U.S. Consulate or Embassy assuming you are documentarily qualified with the National Visa Center (NVC). In sum, the Final Action Dates chart is directly tied to green card/immigrant visa availability – it shows when a visa number is available for an applicant's green card to be issued.
• The “Dates for Filing” chart is considered a bit more forward-looking, indicating when Adjustment of Status applicants may submit their application, even if the final action date isn't current yet. These dates are generally an early readiness indicator, prompting applicants to prepare and submit documentation so that once a green card becomes available (as indicated by having a current priority date under the Final Action Dates chart), their pending Adjustment applications can be quickly processed.

Adjustment of Status (Form I-485 or "AOS") applicants must check USCIS announcements following each monthly Visa Bulletin release to determine which chart to reference. When USCIS determines that there are more green cards available in a particular category than there are applicants, it may allow the use of the "Dates for Filing" chart. This lets a broader group of applicants get their AOS applications in the queue early, even if a final green card number is not immediately available for final action on their case. Having a pending AOS can be particularly beneficial for applicants because it allows them to receive a receipt notice from USCIS, apply for work authorization and travel documents for themselves and their immediate family members, and generally advance in the process towards obtaining LPR status.

However, if USCIS decides that the number of available green cards is closer to the number of applicants who have reached the final stages of processing, it may require applicants to use the less favorable "Final Action Dates" chart. This approach is more conservative, aiming to prevent an excess of pending applications that cannot be finalized due to unavailability in green card numbers.

When nearing the final stages of the green card process, employment-based nonimmigrants subject to a backlog should consider several important factors:

• If you are employed in the U.S., ensure you maintain lawful nonimmigrant status while waiting to file your AOS application or attend your immigrant visa interview. This may involve renewing your current work authorization to avoid any gaps in lawful presence. Understand the timing limitations of your nonimmigrant status, if any. For example, L-1 status is capped at 7 years (L-1A) or 5 years (L-1B). H-1B status is capped at 6 years unless the applicant is subject to AC21 benefits. Work closely with your immigration attorney to plan well in advance to avoid or mitigate any gaps in stay and/or employment in the U.S. Additionally, understand the impact of how an I-140 Immigrant Visa petition approval may have on the renewal of a nonimmigrant status that does not explicitly allow for dual intent, like the TN or O-1; be prepared to strategically address this if it comes up at a visa interview or upon reentry to the U.S. (Note that nonimmigrants in these categories are NOT precluded from obtaining a green card!)
• Anticipate the potential financial implications of prolonged wait times, such as renewal fees for nonimmigrant status or additional legal fees, and budget accordingly.
• If your green card application is based on a certified PERM, note that a significant change in your employment situation may impact your application, including a change in worksite location, a significant promotion or other substantial change in your position duties. Discuss major changes with your immigration lawyer and HR/global mobility team to understand what impact, if any, such a change may have on your green card strategy.
• If you are from a country with high demand for immigrant visas (Indian and Chinese nationals), be aware of how per-country visa limits might extend your wait time and consider exploring strategies to mitigate this impact. The EB-2 National Interest Waiver (NIW) does not require employer sponsorship, providing job flexibility and mobility upon approval. Unlike a PERM-based I-140, you're not tied to a specific employer to eventually file your AOS. For those in H-1B status utilizing AC21 benefits, a self-sponsored NIW approval also offers the freedom to change H-1B jobs without being "stuck" to a specific employer. You would not need to request PERM sponsorship, giving you a slight edge over a candidate who requires this.
• Strategically position your career and accolades for possible EB-1 advancement by focusing on fields that demonstrate exceptional ability or achievement. Aim to secure leadership roles, contribute to significant advancements in your field, and gather evidence of national or international recognition for your work, such as awards, publications, and peer references. Engaging in these activities not only enhances your professional profile but also aligns with the EB-1 category's criteria for individuals with extraordinary ability. This targeted approach can significantly shorten your wait time for a green card by meeting the high standards of the EB-1 category.
• Did you know that if your spouse was born in a different country, you might be able to bypass the longer backlog? Spousal cross-chargeability allows an applicant for an employment-based green card to benefit from the more favorable visa availability of their spouse's country of birth. If the primary applicant's country of birth has a longer visa backlog, you can use your spouse's country of birth for visa allocation, potentially speeding up the process. (For example, if an Indian-born national with an approved I-140 is married to a Canadian-born national, the couple could reference the “All Chargeability Areas” column instead of “India”.)  

Neither your employer nor your immigration attorney can control Department of State backlogs or processing times. Regular communication with your immigration attorney can help you strategically plan during the wait time and navigate any complexities or changes in immigration policy that might impact your application.

 By taking these factors into account, nonimmigrants can better navigate the complexities of the green card backlog and maintain their trajectory towards achieving permanent residency in the United States. Neither your employer nor your immigration attorney can control Department of State backlogs or processing times. Regular communication with your immigration attorney can help you strategically plan during the wait time and navigate any complexities or changes in immigration policy that might impact your application.

Understanding and monitoring the Visa Bulletin is essential for planning your immigration strategy, especially when navigating the final stages of the green card process. It equips both applicants and their employers with the tools to anticipate the progression of the green card journey, ensuring readiness for the next steps towards achieving permanent residency.