Yesterday, Senator Grassley, R-IA, informed the Senate that he was placing a “hold” on the Senate’s consideration of HR-3012.  Such a hold greatly complicates the ability of the Senate to pass the bill, as it is a warning that the Senator would filibuster the bill if it came to the floor.

You can read my thoughts on the bigger picture at AILA’s Leadership Blog, but it’s enough to note that for now, the bill is effectively dead unless other Senators can convince Senator Grassley to remove his hold.

Last month, we held to our prediction that EB-2 dates for China and India would advance to late 2006, perhaps January 2007, before this September. While technically correct, the State Department yesterday released its July 2011 Visa Bulletin indicating a much steeper acceleration: the India/China cutoff date has leapt to March 8, 2007 (up from this month’s October 15, 2006 date).

Another surprise found in next month’s bulletin is that the date for EB-3 Other Workers has advanced from November 8, 2003 to November 22, 2004. Recent Visa Bulletins offered no indication that such a major leap was coming. For those who remember, around this time two years ago all EB-3 advancement came to a standstill.

For the past two Bulletins, the State Department has offered some commentary explaining the acceleration in EB-2 China/India categories by attributing advancement to unused EB-1 allocation. In the May 2011 Bulletin, the State Department predicted that because increasing amounts of Chinese/Indian EB-3 applicants have been “upgrading” to EB-2, less than a month’s advancement was to be expected for either country through July. Clearly, the dates have been advancing at a much faster rate. This month’s bulletin offers no commentary explaining the sudden acceleration or predictions for future cut-off dates through the summer.

Although some may optimistically argue that the movement for China/India EB-2 is beginning to form a pattern, it is not certain whether this acceleration in priority dates will be sustained or whether dates will retrogress in the coming months. Stay tuned.

Whether this acceleration in priority dates will be sustained in the coming months remains to be seen. The State Department explains that there is an increased demand by applicants “upgrading” their category from EB-3 to EB-2, which could potentially stymie the advancement of EB-2 priority dates. Nonetheless, the impact of this increased EB-2 demand has so far been minimal. The State Department cautions that priority date cut-offs for upcoming months cannot be guaranteed and therefore no assumptions should be made. At this time, we make no changes to our prediction that decreased EB-1 applications and approval rates should advance Chinese and Indian EB-2 priority dates to late 2006, and perhaps to January 2007, by September of 2011.

A caveat against reading too much into the NVC action: recall that it was imperfect information-sharing between USCIS and the State Department that led to the July 2007 “Visagate” debacle, and NVC likely has a small minority of the overall number of visa petitions with India and China EB priority dates in 2006 and early 2007, since so many of those beneficiaries could file for adjustment of status in July of 2007.

It’s also possible that NVC is simply trying to get cases set up with fees paid and documents submitted in case the numbers stay current for the rest of the fiscal year – but applicants would lose their filing fees if the numbers retrogress later this year.

We will have to wait for the May Visa Bulletin from the State Department, likely released by April 13 or so, for more detailed information on the State Department’s thinking.

The Eb-3 category cutoff for skilled workers is June 22, 2001 for India and July 1, 2002 for Mexico. The cutoff for China, Philippines, and all other countries is August 1, 2002. The cutoff for Eb-3 unskilled workers is June 1, 2001.

The January 2010 Visa Bulletin also contains the first projection of what priority dates are likely to become currently during this fiscal year, which  is of great interest to adjustment of status applicants with long-pending applications.  The Visa Bulletin predicts, based on current indications of demand, the best case scenarios for cut-off dates which will be reached by the end of FY-2010 (that is, by September 30, 2010) are as follows:

Eb-2:
China: July through October 2005
India: February through early March 2005

Eb-3:

Worldwide: April through August 2005
China: June through September 2003
India: January through February 2002
Mexico: January through June 2004
Philippines: April through August 2005

The Dept. of State advises that the above date ranges are only estimates which are subject to fluctuations in demand during the coming months. The actual future cut-off dates cannot be guaranteed, and it is possible that some annual limits could be reached prior to the end of the fiscal year.

The employment based first preference (EB-1) category will remain current for all nationalities. Cut-off dates in the EB-2 category will advance by two weeks for India, to January 22, 2005, and just over 2 months for China, to March 22, 2005. The EB-2 category will remain current for all other countries.

The EB-3 category remains severely backlogged but will once again be available with cut-off dates of June 1, 2002, and even earlier dates for Indian (April 15, 2001), Chinese (February 22, 2002) and Mexican (May 1, 2002) nationals. The cut-off dates for the EB-3 other worker category have been set at June 1, 2001 except for Indian nationals who will have a cut-off date of April 15, 2001.

The EB-4 religious worker category and the EB-5 immigrant investor categories also remain current. While these pilot programs are set to sunset on September 30, 2009, it is expected that Congress will extend them for an additional period of time.

The first trend is captured in this blog post by Vivek Wadhwa, a professor at Duke University who has studied high-tech entrepreneurship extensively.  Current backlogs in the employment-based immigration categories trap foreign workers in the original job for which they were sponsored, meaning their companies cannot promote them to positions where their experience and skills can best be used.  Nor can the workers take the initiative to start their own companies – while a small company may be able to sponsor one of its owners as an H-1B, a green card is much less likely in that situation.  Wadhwa points out that eliminating the green card backlog (a major part of which consists of cases trapped by bureaucratic delays that should have been approved in past years’ quotas, which do not carry over from year to year) would free an enormous amount of human capital to innovate and create the next generation of companies that will drive economic growth in the US.

More troubling, a combination of the green card quotas (which tie foreign nationals to one specific job) and rules for terminated H-1B workers (described in detail here) are driving away the most talented foreign graduates of our universities.  Recent surveys and profiles of foreign nationals in the US – particularly Indian engineers in Silicon Valley – have highlighted an increase in the number of H-1B who are opting to return home, either from necessity or because the Indian economy now offers them opportunities to start or manage companies  that the US can’t match because of their visa situation.   While opponents of high-tech immigration love to argue that H-1B visas allow tech workers to come to the US and learn skills that they can use back home, the fact is that most tech workers would prefer to use those skills in the US – and that immigrants are a key part of the Silicon Valley start-up community (given how many start-ups have at least one immigrant founder).

The most troubling trend, however, will not be immediate in its impact.  For the first time in five years, US graduate programs reported a drop in the number of international applications to their programs and the number of accepted applicants who chose to come to their programs.  These students are the best and brightest from their countries, and when they choose to go to other countries rather than the US, we lose out not only on the tuition dollars they would have spent (at rates higher than out-of-state students pay), but also on their talents for companies in the US.

While these trends are troubling, they are not irreversible.  What it will take, however, is a rational reform of our employment-based immigration system to recognize the contributions these immigrants make, and the national interest in providing a welcome mat to them.

Fortunately, there is no hint that worldwide first preference, or second preference (except India and China), will become backlogged or run out this year.  More on the EB-3 unavailability after the jump.Here is the Department of State’s explanation:

E. UNAVAILABILITY OF THE EMPLOYMENT THIRD PREFERENCE AND EMPLOYMENT THIRD PREFERENCE “OTHER WORKER” CATEGORIES – The cut-off dates for the Employment Third and Third preference “Other Worker” categories were held and then retrogressed in an effort to bring demand within the average monthly usage targets and the overall annual numerical limits. Despite these efforts, the amount of demand received from Citizenship and Immigration Services Offices for adjustment of status cases with priority dates that were significantly earlier than the established cut-off dates remained extremely high. As a result, these annual limits have been reached and both categories have become “Unavailable.” Visa availability in these categories will resume in October, the first month of the new fiscal year.

For those who incline to see the glass as half full, the good news is that USCIS has managed to adjudicate enough cases that all of the 140,000 employment based immigrant visas will be used this year – in many past years, USCIS processing delays  meant that as many as half of the visas went unused, increasing the backlog.  Another piece of good news was the small phrase that there was demand for cases with significantly earlier priority dates than published – in other words, USCIS is finally getting around to granting some of the cases it has been sitting on since 2001.

For those glass-half-empty types, the fact that USCIS was able to process so many cases with pre-2005 priority dates (the February cutoff) does not bode well for the chances of an EB-3 case with a priority date in, say, early 2007 being granted any time in 2010 or possibly even 2011, unless Congress acts.  Fortunately, skilled worker immigration is considered an essential part of any comprehensive immigration reform package.