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The Department of State announced last year that there were not enough immigrant visa numbers to meet current demand and the processing dates were rolled back dramatically. Many categories continue to be seriously backlogged due to continued heavy demand for employment-based immigration. For the month of October 2006, immigrant visa numbers are available only to those applicants whose priority or filing date is earlier than the cut-off date listed for the applicable employment category.
China-mainland born
EB-1 Available
EB-2 01/April/2005
EB-3 01/May/2002
India
EB-1 Available
EB-2 15/June/2002
EB-3 22/April/2001
Philippines
EB-1 Available
EB-2 Available
EB-3 01/May/2002
Mexico
EB-1 Available
EB-2 Available
EB-3 01/May/2001
Worldwide/All other Countries
EB-1 Available
EB-2 Available
EB-3 01/May/2002
Other (Unskilled) Workers
All Countries
01/Jan/2001
[The complete Bulletin will be found at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.]
Forward movement of the cut-off dates in these categories is likely to be limited. Cut-off date movement depends on future visa demand. It is anticipated that DOL and USCIS backlog reduction efforts and PERM approvals will further exacerbate the problem.
Congressional intervention is required in order to ameliorate this situation. We encourage client companies and individuals to contact Congress, to make sure that your elected representatives are aware of how processing delays and how the lack of visa availability impact your organization's ability to hire and retain the educated and specially skilled employees needed to compete in global industries.
For advocacy assistance, visit The American Immigration Lawyers Association (AILA) web site at www.aila.org, and click on "Legislation & Advocacy" on the left side of the page. By following the "Contact Congress" link in the Advocacy Center, you can access the Urgent Action Center (http://capwiz.com/aila2/home/), which provides options to access the contact information for elected officials and to generate your choice of an email or letter to the appropriate members of Congress. The system provides sample text for featured immigration issues, but we encourage you to describe your organization's specific concerns and needs.
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The following series of FAQs addresses some of the concerns that foreign workers might have related to their pending applications, their ability to attain "permanent residency" status, and their ability to continue working in the United States.
1. How does one determine which preference category one will receive?
Most individuals require a labor certification to immigrate, and the job requirements on the labor certification dictate the preference category. These requirements are determined by the employer's actual minimum requirements for hire in the position in combination with the more restrictive O*Net occupational guidelines used by the Department of Labor (DOL) to determine the "normal" education and experience requirements for an occupational classification. (See the DOL Foreign Labor Certification web site at http://www.ows.doleta.gov/foreign/perm.asp, and the O*Net Occupational Information Network at http://online.onetcenter.org/.)
The Third Preference (EB-3) category is reserved for skilled workers and professionals. A requirement of a bachelor's degree for a professional occupation or 2 years of experience equals EB-3. The requirements of a Master's or higher university degree, or a Bachelor's degree plus five years of progressive experience, equals EB-2. The exception is the EB-1 classification, which is addressed below.
2. If the employee has a Master's degree, or a Bachelor's plus 5 years of progressive experience, is he assured of getting EB-2?
No, for various reasons:
a. The job coding (O*Net occupational classification) may not permit a high experience level. For example, a software engineer has a lower job coding than a computer information systems manager.
b. The employer may feel that the job doesn't require a Master's degree or extensive experience, and other employees holding the same job may not have that level of education and/or experience. The DOL or USCIS may ask the employer to document that the job requirements are legitimate and reflect the company's true hiring standards.
c. The employer must pay the "prevailing wage," per established salary surveys. The salary surveys may not support an EB-2 classification.
d. The employee may not have the required 4-year bachelor's degree. (A combination of studies/degrees - e.g., 3 year degree plus 2 year post-graduate diploma - may not be accepted in lieu of a single 4-year bachelor's degree for EB-2 purposes.)
3. How does one know what one's priority date is?
For employment-based labor certifications, the priority date is the date that the application was received at the DOL or State office where it was filed. This date is referenced on much of the correspondence received from the DOL for the case, and on the labor certification and/or approval notice.
Exceptions:
a. If one used someone else's approved labor certification, and meets all of its requirements to be substituted into that application, one can utilize that labor certification as one's priority date. (Note: A rule eliminating the provision which allows substitution of an alien on an approved labor certification is currently awaiting signature at DOL, and is expected to be implemented soon.)
b. If one had an earlier approved labor certification plus an approved I-140 petition, the priority date on the labor certification is preserved for future cases. Where a new labor certification is filed and approved for a different employer, one requests the application of the first labor certification filing date.
4. How is the country of chargeability established?
The country of birth, not citizenship establishes chargeability. Thus, even if one becomes a citizen (for example, of Canada), but was born in China-mainland, China is the chargeability country.
Exceptions:
a. One can be charged to the country of one's spouse;
[For this reason, it is very important that the attorney know
if the individual is married, and have information on the
spouse's country of birth.]
b. If one was born in a country while parents were temporarily working
or visiting that country, one might be charged to the country of the
parents' birth. This is known as the "missionary" provision.
5. Why have visa numbers retrogressed?
The Visa Bulletin summarizes the availability of immigrant numbers for each month. Ironically, it is the success of the USCIS backlog reduction efforts that have depleted the number of available immigrant visa numbers and resulted in this drastic retrogression. Allocations are made during each month, to the extent possible under the numerical limitations, to meet the visa demand received from Consulates and Immigration Services Offices. If the demand can not be satisfied for a particular category (e.g., EB-2 India), a cut-off date or notation of unavailable must be implemented. The cut-off date for such a category is the priority date of the first applicant who could not be given a number. Only applicants who have a priority date earlier than the cut-off date may subsequently be allotted a number. You will find additional information in the Visa Bulletin itself.
6. If visa numbers have retrogressed for an employee's category but he has already filed an adjustment of status application ("AOS"), is he protected in some way?
While the employee still cannot be accorded permanent resident status unless a visa number is available for the case, he will still continue to get extensions of the work permit and travel permit while the application is pending. Family members who file as derivative applicants are also eligible for work and travel permits for the duration of the application process. If the I-140 is approved and the AOS pending for more than 180 days, the employee may port to another job as long as the position offered is similar to the one for which he was sponsored.
7. What if the labor certification is still pending or the employee's AOS has not been filed, and six years of H-1B status will expire soon, and the labor certification was filed on or after the cut-off date?
While the employee will be unable to file a permanent resident AOS application since a number must be available at time of filing, he will be eligible for extensions of H-1 status as long as the labor certification application or immigrant petition was filed more than 365 days prior to the H-1 expiration date OR the immigrant petition is approved. Once the labor certification and the I-140 are approved, if the individual is unable to proceed with permanent residence merely due to lack of an immigrant visa number, he is eligible for a 3-year extension of H-1 status.
8. Are there other employment based categories that can be used to avoid the oversubscribed categories?
While the majority of individuals immigrate in the EB-2 and EB-3 categories, some individuals qualify for EB-1 based on being outstanding professors, or researchers, or individuals with extraordinary ability, or intra-company transferees who worked for the U.S. employer abroad for at least one year in a managerial or executive classification. Keep in mind, however, that the EB-1 category is also oversubscribed for individuals born in mainland China and in India.
9. What can be done to minimize the delay caused by visa unavailability?
We continuously work to identify alternatives and strategies to expedite the permanent residence process for our client companies' employees. One of these strategies is to file immigrant petitions (Forms I-140) in multiple categories when lower preference categories have later cutoff dates.
10. How can one track the monthly advancement of visa numbers?
The current Visa Bulletin, as well as archives of previous bulletins, will be found online at http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html.
11. What if I have a current case pending at the Backlog Elimination Center (BEC), should I refile under PERM?
Here are factors to consider:
A. While it is nice to have a labor certification approval, an expedited approval under PERM may not result in faster permanent residency processing now that immigrant numbers have retrogressed for some nationalities.
B. Because the Department of Labor has not given clear guidance on how to file a PERM labor certification and preserve the earlier priority date of the BEC application, most attorneys have filed a PERM application without attempting to preserve the earlier date. Absent guidance, our firm has nevertheless started to process "refilings" by amending completely the existing labor certification to make it "identical" to the new PERM filing.
C. It might be advantageous to refile under PERM if it results in a higher preference category AND the earlier priority date can be preserved. This will mean amending and increasing job requirements in the BEC application. While it is clear that one's occupational title cannot change, we think it should be possible to amend job requirements if the employer's experience or educational requirements have changed and salary levels have increased. Based on the October 2006 visa bulletin, it would be advantageous to move up to EB-2 from EB-3.
D. Another strategy may involve just waiting until the BEC application gets approved, then file the I-140. Subsequently, file a PERM application with an upgraded classification. Once the PERM application is approved, one files a new I-140 and requests the priority date of the first approved I-140. The priority date on any earlier approved I-140 can generally be preserved for a subsequent I-140.
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