The U.S. State Department has announced that it has already issued all available visas for the Employment-Based Third Preference (EB-3), Other Workers (EW), and Employment-Based Fifth Preference (EB-5) categories for Fiscal Year 2024.
If you’re an employer or worker in one of these categories, here’s what you need to know about the situation and how to plan for the next fiscal year.
What Are the EB-3 and EW Visa Categories?
The EB-3 visa is a type of immigrant visa that allows U.S. employers to sponsor foreign workers for permanent residence. It is divided into three subcategories:
- Skilled Workers – Jobs requiring at least two years of experience or training.
- Professionals – Jobs requiring at least a U.S. bachelor’s degree or its foreign equivalent.
- Other Workers (Unskilled Workers) – Jobs requiring less than two years of experience or training.
The Other Workers (EW) category refers to unskilled workers who fill jobs in industries that face labor shortages, such as healthcare and agriculture. These visas are crucial for U.S. industries that rely on foreign talent to fill gaps where there are not enough domestic workers.
EB-5 Visa and Immigration Opportunities for Investors
The EB-5 visa allows foreign investors to obtain a green card by investing a specified amount in a U.S. business that creates or preserves at least 10 full-time jobs for U.S. workers. The EB-5 category also reached its annual cap for FY 2024, meaning no further visas will be issued in this category until the new fiscal year begins.
Why Have All These Visas Been Issued?
Each year, the Immigration and Nationality Act (INA) limits the number of employment-based visas that can be issued. Specifically, it allocates 28.6% of the total employment-based visa limit to the EB-3 category, with a cap of 10,000 visas for the Other Workers (EW) subcategory. Additionally, the EB-5 visa category is allocated 7.1% of the total number of employment-based visas.
For FY 2024, these annual visa limits have already been reached. This means that U.S. embassies and consulates will not be able to process any more visa applications for the EB-3, EW, and EB-5 categories until October 1, 2024, when the new fiscal year begins and the visa quotas reset.
What Does This Mean for Employers and Workers?
The early exhaustion of the EB-3 and EW visas highlights the strong demand for these employment-based visas, especially as U.S. businesses rely on foreign workers to fill essential positions. Employers planning to hire foreign workers should be aware of the timing limitations and work with their immigration lawyers to stay ahead of the process.
For both workers and employers, understanding the visa cap and deadlines is crucial for planning. Workers who are in the process of applying or hoping to apply soon should stay in touch with their employers and immigration experts to ensure they are ready to continue their applications once the new fiscal year begins.
What Happens Next?
The start of FY 2025 is just around the corner, beginning on October 1, 2024. This is when the annual limits for these visa categories will reset, and U.S. embassies and consulates will resume processing applications for EB-3, EW, and EB-5 visas.
Employers and workers should be prepared to act quickly once the new fiscal year begins to avoid delays and ensure the timely processing of applications.
Other Employment-Based Visa Categories to Consider:
While EB-3 and EB-5 visas have already reached their annual limits, other employment-based visa categories remain available. These include:
- EB-1 Visa (for individuals with extraordinary abilities in their field)
- EB-2 Visa (for professionals with advanced degrees or exceptional abilities)
- EB-4 Visa (for special immigrants, such as religious workers and employees of international organizations)
- E-2 Visa (for nonimmigrant investors planning to manage or develop a business in the U.S.)
If you are considering these options or need assistance navigating the U.S. visa process, Law and Visas can help you understand the best path for your immigration needs and ensure timely and accurate submission of your application.
Visa Bulletin and Priority Dates
The U.S. Department of State’s Visa Bulletin is a crucial tool for individuals seeking to understand their place in the immigration process. It provides essential information regarding priority dates, visa availability, and the impact of visa caps on applicants.
How the U.S. Department of State’s Visa Bulletin Works
The Visa Bulletin is published monthly and lists two critical sets of dates: Dates for Filing and Final Action Dates.
- Dates for Filing: This indicates when an applicant can submit their adjustment of status application (Form I-485) or consular processing application. If an applicant’s priority date is on or before this date, they can proceed with their application.
- Final Action Dates: This reflects when an application can be finalized and approved. An applicant’s priority date must be earlier than this date to receive a decision on their application.
The priority date is established when an immigrant petition (such as Form I-130 or I-140) is filed and serves as a person’s place in line for visa availability. For instance, if the priority date for an EB-2 applicant from India is May 15, 2012, they must wait until the Visa Bulletin shows a cut-off date that allows them to proceed with their application.
Explanation of Priority Dates and Waiting Time Involved
Priority dates are essential in determining when applicants can move forward in the immigration process. The waiting time can vary significantly based on several factors, including:
- Country of Origin: Countries with high demand for visas, such as India and China, often experience longer waiting times due to oversubscription.
- Visa Category: Employment-based categories like EB-3 (skilled workers) may have different waiting times compared to EB-2 (advanced degree professionals) or family-based categories.
The backlog can lead to years of waiting for applicants, particularly those from countries with high levels of immigration to the U.S.
Impact of Visa Caps on Applicants’ Ability to Adjust Status or Receive Green Cards
The U.S. government imposes annual caps on the number of visas issued in various categories. These caps can significantly affect applicants’ ability to adjust their status or receive green cards:
- Delays in Processing: When visa caps are reached, processing times can increase dramatically, leading to extended waits for applicants who are already in the U.S. on temporary visas.
- Backlogs: High demand often results in backlogs that can take years to clear, particularly for employment-based categories like EB-3, EB-4, and EB-5.
Impact of Reaching Visa Limits on EB-3, EB-4, and EB-5 Applicants
Reaching visa limits has specific implications for applicants in these categories:
- Delays in Processing Times: Once limits are reached, applications may be put on hold until new visas become available. This leads to uncertainty and prolonged waiting periods for applicants.
- Effects on Temporary Visa Holders: Those already in the U.S. may face challenges if their temporary visas expire while they wait for their green cards. They might need to leave the country or risk being out of status.
- Backlog Duration: Applicants may face extensive delays; for example, those applying under the EB-3 category from India may wait over a decade due to high demand and limited visa availability.
Allocation of Remaining Visas
The State Department allocates remaining visas based on several factors:
- Country-Specific Caps: Each country has an annual limit on the number of visas that can be issued.
- Preference Categories: The U.S. allocates visas based on preference categories, such as family-sponsored and employment-based.
- Unused Visas: If certain categories do not use all available visas, the State Department may redistribute them to other categories or countries.
- Delays in Processing: Once visa caps are reached, processing times can increase significantly, resulting in extended waits for applicants already in the U.S. on temporary visas.
Possible Solutions to Visa Backlogs and Caps
Addressing visa backlogs requires legislative action and reforms:
Legislative Proposals
- Increasing Visa Numbers: Proposals exist to raise the annual caps for employment-based immigration to alleviate backlogs.
- Revising Country Caps: Some lawmakers advocate for eliminating country-specific limits that disproportionately affect nations like India and China.
Congressional Actions
Congress might explore measures such as:
- Streamlining processes for certain visa categories.
- Adjusting allocation methods to better reflect current immigration trends.
Modernization Efforts
Efforts to modernize the immigration system could include:
- Streamlining Processes: Simplifying application procedures can reduce processing times.
- Enhancing Technology: Implementing better tracking systems for applications could improve efficiency.
- Reforming Specific Categories: Targeted reforms for EB-3, EB-4, and EB-5 could help manage backlogs more effectively and its Visa limits.
Government Actions and Announcements Regarding Visa Limits
Recent announcements from the U.S. State Department highlight ongoing challenges:
- Reaching Visa Limits: The government has acknowledged instances where specific categories have hit their caps early in the fiscal year.
- Expedited Processing Measures: Steps have been taken to expedite processing where possible but often fall short due to overwhelming demand.
- Special Measures for High-Demand Countries: Countries like India and China may receive special considerations due to their lengthy wait times.
The Effect on EB-5 Investor Visa Applications
The impact of reaching EB-5 visa limits is particularly pronounced:
- Investment-Based Immigration Challenges: Investors may face increasing difficulties securing permanent residency if caps are reached before their applications are processed.
- Consequences of Annual Cap Reaches: If the EB-5 program reaches its annual cap, applicants may face delays that hinder their ability to finalize investments or secure residency.
- Backlogs Affecting Job Creation Commitments: Delays in processing can impact regional centers’ commitments to job creation, which is a critical component of the EB-5 program’s structure.
What changes are expected in the immigration policies for the upcoming fiscal year
Significant changes in U.S. immigration policies are anticipated for the upcoming fiscal year, particularly under a potential second Trump administration. Here are the key expected changes:
1. Restriction of Legal Immigration Pathways
- Reduction in Humanitarian Protections: There are plans to limit the entry of humanitarian migrants, including reducing refugee admissions and potentially eliminating Temporary Protected Status (TPS) for certain countries. The annual refugee admissions ceiling, which was raised by the Biden administration, may revert to much lower levels similar to those during Trump’s first term.
- Backlogged Visa Applications: The new administration may implement measures to cut off visa applications deemed excessively backlogged, which could further restrict legal immigration avenues.
2. Increased Enforcement Actions
- Mass Deportations: President-elect Trump has indicated intentions to carry out mass deportations of undocumented immigrants, utilizing military resources if necessary. This could lead to family separations and increased detentions.
- Workplace Raids: Similar to previous enforcement strategies, there may be a resurgence of workplace raids targeting undocumented workers.
3. Impact on Asylum Seekers
- Closure of CBP One Application: The administration is likely to shut down the CBP One application that allows asylum seekers to schedule interviews for lawful entry, which could lead to increased attempts to cross the border outside official ports
4. Changes in Local and State Enforcement
- Pressure on Sanctuary Cities: The new administration is expected to exert pressure on sanctuary cities that limit cooperation with federal immigration enforcement, potentially leading to more aggressive local enforcement actions.
5. Economic and Social Implications
- The anticipated policies may result in a slowdown of immigration flows, which could negatively impact various sectors of the economy that rely on immigrant labor, such as agriculture and construction. Additionally, there could be significant emotional and psychological effects on immigrant communities due to heightened fear and uncertainty.
6. Legislative Challenges
- While the executive branch has considerable authority over immigration policy, any drastic measures may face legal challenges similar to those encountered during Trump’s first term. This could create a complex landscape of enforcement and legal battles regarding immigration policies.
How Law and Visas Can Help?
At Law and Visas, our team of expert immigration consultants is here to make your travel to the U.S. straightforward and successful. Whether you’re applying for an E-2 Visa or a TN Visa, we handle every step—from preparing your application to gathering the required documents.
Our Immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.
Law and Visas has a strong record of helping clients secure the visas/permits they need to visit the United States. You can call us today at +234 812 5505 986 to learn how we can help you.
