Calculation for Number of Pending Employment Based Applications

Executive Summary

The official tallies of backlogged visa applications significantly undercount the size of the backlogs. A
recent USCIS reports indicated that the estimated size of employment-based permanent residence
backlog is 234,000 1a. The figure was subsequently quoted in press reports1b implying that this indicates
the total size of the current Employment Based backlogs. In fact, this is the size of current official
backlogs only at Department of State and is grossly inaccurate. As this analysis suggests, the
Employment Based permanent residence backlog is, conservatively, more than 1.1 million.

Obtaining an employment-based permanent visa is a three-stage process. Each stage of the process
involves a different federal agency. The first stage involves certification from the Department of Labor,
the second involves DHS (USCIS), and in the third, the State Department allocates a visa number. Each
of these three federal agencies employs a different definition for “backlogged application.”

Most significantly, thousands of applicants who have approved labor certifications (from DOL) and
immigrant petitions (from USCIS) but are unable to file Adjustment of Status due to backlogged visa
bulletin dates are not considered as “backlogged” according to the definition of DOL, DHS (USCIS) and
DOS.

Moreover, in order to calculate the accurate size of pending employment-based applications, one has to
accurately count the size of all the pending applications at the three federal agencies at the same point
in time. The size of backlog will not be accurate if the size of the backlog from the three agencies is not
for the same time period.

Citing federal government public documents, this analysis attempts to provide a more accurate portrait
of the size of the pending employment-based green card backlog for the same time period at the three
federal agencies. Again, this count does not include the applicants waiting to file Adjustment of Status
(as explained above).

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1a
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextchan
nel=ae853ad15c673210VgnVCM100000082ca60aRCRD&vgnextoid=5e170e6bcb7e3210VgnVCM100000
082ca60aRCRD
1b
http://www.nytimes.com/2013/04/22/opinion/visa-reforms-for-skilled-workers.html?_r=0

Employment-Based Green Card Backlog Size Page 1

This analysis is for January 2005. The major backlog started accumulating after October 2005, when all
the employment based dates retrogressed (went backwards) in the Visa Bulletin. Over a million
applications were pending before the start of retrogression, and since October 2005, there has been no
Congressional action on this issue. Every year, a larger number of new applicants were added to the
system and a smaller number of applicants were adjudicated. As a result, the real size of employment-
based green card backlog must be at least 1.1 million.

Explanation

The federal government has not published the size of all the pending applications at the three agencies
handling employment-based immigration at the same point in time. In our research, we had to go back
to January 2005, when the Federal Government publically provided the numbers for the pending
application at each of the three Agencies.

Here are applicable facts and citations used in this analysis:

Facts

1.) The dependents are NOT part of the application during the first two stages of the employment-
based green card process. As a result, each application during the first two stages of the
employment based green card process represents NOT just one person but one family.

2.) At the last stage of the green card application, called adjustment of status, each member of the
family and the primary applicant will file a separate application to change their non-immigrant
(H-1B, J-1, L-1) status to immigrant status (legal permanent residence).

3.) On average, each legal permanent resident is accompanied by 1.2 family members.1

1
3rd paragraph on CRS-18 (page 22) of Congressional Research Services Report titled "U.S. Immigration
Policy on Permanent Admissions" reads as "If each employment-based LPR would be accompanied by
1.2 family members (as is currently the ratio)."- http://fpc.state.gov/documents/organization/66512.pdf

Employment-Based Green Card Backlog Size Page 2

Analysis

Breakdown of the backlogged applications based on the three stages of the process (Each stage involves
a different federal agency).

Stage – 1: Labor Certification involving Department of Labor

(a) Only primary applicant is counted at this stage (dependents of the primary applicant not counted).

(b) Department of Labor’s own assessment shows constant revision of internal targets. See Question 2.1
on page 212, of Program Assessments, Department of Labor 3 4.

(c) The backlog is 315,000 2 3 (i.e. number of primary applicants only - not including dependents)

(d) So primary applicants plus dependents = 315,000 + (315,000*1.2) = 693000

STAGE – 2: Immigrant Petition (also called I-140) involving DHS (USCIS)

(a.) Only primary applicant is counted at this stage (dependents of the primary applicant not counted).

(b.) Page 13 last paragraph of USCIS Ombudsman's report 5

"In a January 2005 email to the President’s Council of Economic Advisors (CEA), USCIS reported that it
had 270,533 pending employment-based applications for green cards and 191,221 of these applications
were backlogged. In addition, USCIS reported to the CEA that there were 66,832 employment-based
immigrant petitions (Form I-140) pending and 28,111 of these applications were backlogged."

(c) So 66,832 (primary applicant) applications are pending at I-140 stage

(d.) Total number of pending applications (including dependents) = 66,832 + (66,832*1.2) = 147,030

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3
http://www.whitehouse.gov/sites/default/files/omb/assets/OMB/expectmore/detail/10002380.2004.h
tml
4
http://www.whitehouse.gov/omb/budget/fy2006/pma/labor.pdf (No longer works, use the above link)
5
http://www.dhs.gov/xlibrary/assets/CISOmbudsman_AnnualReport_2006.pdf

Employment-Based Green Card Backlog Size Page 3

STAGE – 3: Adjustment of Status (also called I-485) - USCIS, Department of State & FBI

(a) This stage includes primary applicants and their dependents (i.e. spouses and children)

(b) 2nd paragraph on Page 110 of the Economic Report of the President 6 (for the period January 2005)
says

"As of January 2005, there were 271,000 employment-based applications for adjustment of status
pending"

(c) As seen in the ‘Economic Report of the President’ that number of pending employment-based
applications at Adjustment of Status in January, 2005 were = 271,000

Total Number of Pending applications at Department of Labor, DHS (USCIS) and Department
of State

If we add 1(d), 2(d) and 3(c) = 693,000+147,030+271,000=1,111,030 ~ 1.1 million pending applications

Conclusion

Based on the official definition of “backlogged applications,” which is much lower than the actual size of
the backlog, employment based backlog was over 1.1 million pending applications. Since there has been
no intervening action to decrease the backlog, the size of the employment-based backlog has increased
significantly since January 2005. As a result, a fair estimate is that current backlog is significantly more
than 1.1 million pending applications.

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6
http://www.gpoaccess.gov/eop/2005/2005_erp.pdf

Employment-Based Green Card Backlog Size Page 4