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remain in the U.S. and the employment authorization granted to them when they filed their adjustment applications is no longer valid.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.