Seguritan US Immigration Articles

The Long Wait for Employment-Based Green Card

Many people know that the process of becoming a U.S. immigrant through employment begins with the filing of a labor certification application or an immigrant visa petition which assigns a “priority date” to the foreign national. This priority date determines the foreign national’s place in the line for an immigrant visa.

But many people also make the mistake of underestimating the length of time they must wait before a visa number becomes available to them. For example, if an EB3 preference petition is filed for a professional today, he might assume that, based on the latest visa bulletin which shows an August 1, 2007 cut-off date for the Philippines, his priority date will become current in about eight years.

This is not necessarily true. To understand how long one must wait before his/her priority date is reached, it is useful to have an idea of how immigrant visa numbers are allocated and what the actual demand under a visa category is.

The monthly cut-off date is determined by the Visa Office (VO) of the Department of State (DOS). The VO collects information from overseas consular posts as well as the USCIS with regard to immigrant visa requests. It calculates visa number usage and compares the demand with the allotment, separating it by foreign state chargeability and preference.

If the demand does not exceed the allotment, the category is current and no cut-off date is needed. Otherwise, the category is considered oversubscribed and DOS sets a cut-off date which is the priority date of the first applicant who will not receive a visa number.

Employment-based (EB) immigration operates on a preference system which distributes the limited number of immigrant visa numbers available each year into five general categories. These are: EB1 for priority workers; EB2 for advance degree processionals and aliens of exceptional ability; EB3 for skilled workers, professionals and lesser skilled “other workers”; EB4 for special immigrants, including religious workers; and EB5 for investors. The principal worker’s spouse and children are counted against the available number of immigrant visas.

The law sets a worldwide limit of 140,000 EB visas per fiscal year. The EB1, EB2 and EB3 categories each get 28.6% of the total or 40,040 visas per category. The EB4 and EB5 categories each get 7.1% or 9,940 visas.

However, there is also a per-country limitation in the number of visas available per EB category which is 7% of the total annual limit. This means that only 2,803 visas for EB1 through EB3 and about 700 visas for EB4 and EB5 may be initially allocated to any single nationality group per year. Quite obviously, the visa allocation system works to the disadvantage of populous countries such as India, China and the Philippines.

The complex visa allocation system also involves several mechanisms that reallocate unused visa numbers. Unused visa numbers in EB4 and EB5 “fall up” to EB1. Unused numbers “fall down” from EB1 to EB2 to EB3. If an oversubscribed country has a relatively small demand for family-based visas, the excess visa numbers “fall across” to the EB preferences, as long as the total number use is still within the 7% limit for the country. This also works the other way around, i.e. from employment based to family based. However, the Philippines does not benefit from this type of spillover because it is oversubscribed in both employment and family preferences.

EB-3 Cut-off Dates Advance in December

The December 2013 Visa Bulletin shows that the worldwide employment-based third preference (EB-3) cut-off date will advance by one year from October 1, 2010 in November to October 1, 2011. The Philippines third preference cut-off date will move by three weeks to January 8, 2007.

India’s employment-based second preference will retrogress from June 15, 2008 to November 15, 2004 while its third preference will move back from September 23, 2003 to September 1, 2003. This is the result of the dramatic increase in applicant’s demand for visa numbers in the past few months.

The employment-based second preference (EB-2) will remain current for all countries except China and India. All the other employment preferences will remain current for all countries.

The family-based preferences (F-1 to F-4) will move slowly. The worldwide preference cut-off dates are as follows: F-1 – November 15, 2006; F-2A – September 8, 2013; F-2B – May 1, 2006; F-3 – March 8, 2003 and F-4 – September 8, 2001.

The Philippines cut-off dates are: F-1 – July 1, 2001; F-2A – September 8, 2013; F-2B – March 22, 2003; F-3 – January 22, 1993 and F-4 – June 1, 1990.

Because of the annual numerical limitation of visa numbers, cut-off dates are established for oversubscribed categories. If an applicant’s priority date is before the cut-off date stated in the monthly visa bulletin, a visa number is immediately available. If the priority date comes on or after the cut-off date, the applicant needs to wait until the priority date becomes current.

The family-based 1st preference category (F-1) refers to unmarried sons and daughters of U.S. citizens, while the F-2A preference refers to spouses and children (less than 21 years old) of permanent residents.

The F-2B preference category refers to unmarried sons and daughters (21 years or older) of lawful permanent residents. The F-3 preference refers to married sons and daughters of U.S. citizens. The F-4 preference pertains to brothers and sisters of adult U.S. citizens.

Beneficiaries of employment-based and family-based preferences who have priority dates earlier than the aforementioned cut-off dates and are currently in the U.S., must file their adjustment application in order to get certain interim immigration benefits such as employment authorization and travel permit. Those with pending adjustment applications will be allowed to remain in the U.S. and work here until the adjudication of their adjustment applications.

Eligible to file for adjustment of status are those lawfully present in the United States or those who are beneficiaries under Section 245(i) of the Immigration and Nationality Act. To be covered under Section 245(i), an alien must be the beneficiary of an immigrant visa petition or labor certification properly filed on or before April 30, 2001. If the visa petition or labor certification was filed after January 14, 1998, the alien must prove that he/she was in the U.S. on December 21, 2000.

Among the documents required to file for adjustment of status, in addition to Form I-485 and related forms, are the applicant’s photographs, medical examination report, affidavit of support, copy of passport and I-94, copy of birth certificate, and if applicable, copy of the applicant’s marriage certificate and official proof of termination of any prior marriage.

Filing EB-2 Now Before Visa Caps Change

The Fairness for High-Skilled Immigrants Act overwhelmingly passed by the House of Representatives on November 29 has been blocked at the Senate by Sen. Chuck Grassley (R-Iowa), who has put a hold on the bill for reasons he has not so far clearly explained.

The bill seeks to alter per-country visa caps and shorten the waiting time for employment-based immigrant visas, particularly in the third-preference (EB-3) and second-preference (EB-2) categories for Indian and Chinese nationals,

But it does so at the expense of other countries such as the Philippines. In the event that the bill gets passed by the Senate and signed by Pres. Obama, it would result in longer waiting times for nationals of other countries.

One way to avoid the long wait is by immediately filing for the EB-2 category, where there is a yearly allocation of 40,000 visas.

Right now, for nationals of countries other than India and China, visa numbers are immediately available under the EB-2 category, while there is at least a six-year wait for those in the EB-3 category. If the bill becomes law, there would eventually be a visa backlog under EB-2 while that under EB-3 would worsen.

EB-2 has two subcategories: foreign nationals of “exceptional ability in the sciences, arts or business, and advanced degree professionals.

The advanced degree requirement is met if the beneficiary is a member of the professions holding an advanced degree or its equivalent, and the position requires at a minimum an advanced degree. Professionals that may apply for EB-2 include nurses, physical therapists, engineers, teachers and accountants.

The beneficiary must have a U.S. master’s degree or its foreign equivalent degree. If the beneficiary does not have a master’s degree, EB-2 is still appropriate if the beneficiary has a bachelor’s degree plus five years of “progressive experience” in the profession. In the latter case, the USCIS deems the combination as equivalent to a master’s degree.

For purposes of the equivalency, the employment experience must be one that “progresses, moves forward, and advances toward increasingly complex and responsible duties demonstrating advancing levels of responsibility and knowledge in the specialty.”

Exceptional ability workers, on the other hand, must show a degree of expertise that is “significantly above the ordinary”. This can be established through any three of the following: degree relating to an area of exceptional ability; employment letters showing at least 10 years of experience; having a professional license or certification; membership in a professional association; evidence that the alien commanded a high salary which demonstrates exceptional ability; and recognition of achievements and significant contribution to the industry or field by peers, government entities, and professional or business organizations.

A labor certification is required before applying for an EB-2 visa and this adds anywhere from several months to more than one year to the immigrant process.

Labor certification is not required, however, if the position is among those listed in Schedule A, such as nurses and physical therapists, as well as some exceptional ability aliens, including college and university teachers.

Another way to be exempt from the labor certification requirement is through the “national interest waiver”. The alien requesting the waiver must show that the employment is in an area of substantial intrinsic merit, the benefit of his employment is national in scope, and the national benefit outweighs the national interest in requiring labor certification.

Since the above-mentioned bill will likely become law, workers from countries other than India and China should consider all available options to try to avoid or mitigate the unfortunate effect of the law on them.

Bill Eases Green Card Wait for Some Countries

There is both good news and bad news in the immigration bill that was overwhelmingly passed by the House of Representatives last November 29.

Because the bill seeks to eliminate per-country quotas for the employment-based categories and increase quotas for family-based applicants, but without adding new visas, a few countries will have shorter waiting times for a green card while other countries will see an increase in visa backlogs.

The bill, called the Fairness for High-Skilled Immigrants Act, was sponsored by Republican Congressman Jason Chaffetz of Utah along with known immigration hardliner Rep. Lamar Smith of Texas. It is on its way to the U.S. Senate and, once passed, President Obama is expected to sign it into law.

Current law places an annual visa cap of 140,000 for employment-based categories and 226,000 for family-based categories, and only 7% of that total number can be allocated to nationals of each country.

The bill will benefit employment-based applicants from India and China. Under the EB-3 category, the December 2011 cut-off dates are September 8, 2004 for China (April 22, 2003 for EB-3 Other Workers) and August 1, 2002 for India (July 22, 2002 for EB-3 Other Workers). For the EB-2 category, the cut-off date is March 15, 2008 for both countries. Their cut-off dates will significantly advance if the bill becomes law.

Since the bill does not create new visas, retrogression will worsen for other countries. The Philippines and the rest of the world will experience further retrogression in the EB-3 category, where the cut-off currently is January 15, 2006 (January 1, 2006 for Other Workers).

And although visa numbers are currently available to all countries other than India and China in the EB-2 category, their nationals would have to wait longer for a green card as a result of the bill.

By 2015, there would definitely be backlogs for all countries in both employment-based categories because under the bill there will only be one waiting line, and one cut-off date, for each category for all countries.

On the other hand, Filipinos and Mexicans stand to benefit from the changes in the family-based preferences. The 7% per-country cap will be raised to 15%, which could result in further retrogression for other countries. As more visas become available, the wait for a green card becomes shorter for many Filipino and Mexican families.

The need to attract talent and maintain competitiveness is the main reason behind the bill. Businesses that hire highly educated and skilled workers, particularly in science and technology, have been asking the government to ease the wait for employment-based green cards.

A significant number of employer-sponsored immigrants come from China and India but because of the annual cap and per-country limits their visa backlogs are larger. For example, according to a study an Indian professional sponsored for an EB-3 visa today would actually have to wait 70 years to get a green card because of the sheer number of visa applicants from India.

Not surprisingly, critics of the bill say that fairness to highly-skilled workers from China and India is unfairness to highly-skilled workers from other countries. By replacing one backlog with another, the bill is perceived to be favoring Chinese and Indian nationals at the expense of nationals of other countries.

It remains to be seen if Congress will at least make more visas available instead of just reallocating them. The real solution is comprehensive immigration reform but, given the current political climate, it seems unrealistic to expect one to be passed in the near future.

Heavy Visa Demand Puts Nurses in U.S. in Tight Spot

The heavy demand for visa numbers in the employment-based 3rd preference category (EB-3) has resulted in the slow movement of its cutoff date. The June 2010 cutoff date is June 22, 2003. This means that only those beneficiaries whose priority date is before that date may be scheduled for an immigrant visa interview at a US Consulate abroad or may file for adjustment of status in the U.S. 

The slow movement has created difficulties particularly for nurses currently in the U.S. who wish to adjust their status to permanent residency. They usually fall under one of three situations. 

There are those who were able to file their adjustment applications before the retrogression but their applications were denied because they could not submit their Visa Screen certificates before the deadline set by the U.S. Citizenship and Immigration Services (USCIS). These nurses cannot lawfully remain in the U.S. and the employment authorization granted to them when they filed their adjustment applications is no longer valid. 

There are those who have passed their licensure exams and have found employers willing to sponsor them for I-140 petition. Their I-140 approval will register them on the waiting list but once their nonimmigrant visa status expires, their presence in the U.S. becomes unlawful. 

Then, there are those who have just arrived on a nonimmigrant visa, usually B-2, that is still valid. They may change to another nonimmigrant visa status such as F-1 student which is valid for the duration of their studies. They may also change to H-1B if they are certified as Advanced Practice Registered Nurses or are upper level Nurse Managers, and they may be able to stay here for another six (6) years, or longer if they have an approved I-140 petition and a visa number is not available. 

Unfortunately for those who have overstayed their temporary visas, if they leave the U.S. because they cannot file their adjustment of status application, the 3-year/10-year bar will kick in and they can kiss their dreams of getting a job in the U.S. goodbye. 

Under immigration laws, those who have overstayed their temporary visa for over six months but less than a year will be barred from reentering the U.S. for three years, while those who have overstayed for more than a year will be barred from reentering for ten years.

No one can determine how long nurses will have to wait for visa numbers. The formula for allocation of visa numbers is rather complex. We can only make an estimate. Nurses fall under the EB-3 category but this category also includes other professionals and skilled workers. EB-3 is allotted 28.6% of the 140,000 annual worldwide quota for all employment-based preferences. 

There is also a per country limit of 7% of the 140,000 visa numbers. A country’s yearly allotment is increased if other countries do not use up their numbers. Each country is allotted 2,800 visas per year. 

It is still hard to say at this point when Congress will get around to passing the immigration reform law that would ease the visa backlog. The Nursing Relief Act that has been introduced every year in the last several years and which would create a separate nonimmigrant visa category for RNs engaged in temporary work has not garnered enough legislative support. And the comprehensive immigration reform bill that would exempt nurses from the immigrant visa quota is still bottled up in the Judiciary committee.

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