labordrags
Registered Users (C)
12/12/2004: Options for EB-31 Retrogressed Indians, Chinese, and Filippinos
It is likely that the priority date for EB-3 may move either slow or move further back depending on the pace of USCIS I-485 backlog reduction efforts. Considering the fact that the USCIS will do everything within power to achieve the 6-month processing time goal by September 30, 2006, which is committed by the President Bush, the visa number usage for EB-3 will keep rising adding further pressure on the EB-3 visa priority dates. Facing such challenge, the immigrant community should learn some lessons from prior experiences in the immigration history when the EB-3 numbers were heavily backlogged and Chinese and Indians had to wait a long time to get a green card. When the EB-3 numbers were heavily oversubscribed, the Chinese en masse started filing EB-2 cases, leading to an abnormal movement between EB-2 and EB-3. One time, EB-2 numbers were more backlogged than EB-3. How did they cope with the problem? The answer was filing of "multiple petitions."
In order to understand this option, one has to understand the rule of the employment-based preference immigration petitions. The rule is analogous to a "watershed" or "downhill water stream." For instance, once he/she obtains a "upstream" labor certification application such as EB-2, he/she is also eligible for "downstream" immigrant petitions such as EB-3. Accordinly, in this illustration, if he/she obtains a labor certification approval for EB-2 job, he/she can file two I-140 petitions simultaneously or sequentially, one for EB-2 I-140 petition and the other for EB-3 I-140 petition. If he/she chooses to do that, he/she can also file just a EB-3 petition using the certified EB-2 labor certification application. The same is not allowed from downstream labor certification application to upper stream preference immigrant petitions. For instance, if he/she obtained a labor certification for EB-3, he/she cannot file a EB-2 petition.
If we look at the January 2005 Visa Bulletin, the visa numbers for Indians, Chinese, and Filippinos will be retrogressed to January 1, 2002 for EB-31 (professional with a bachelor's degree or skilled worker requiring minimum of 2-year work experience). Strangely enough, though, the lower stream preference category of EB-32 (other workers requiring less than 2-year of work experience) will remain "current." EB-32 has much less number of visas than EB-31 under the law. The current unusual pattern of priority dates for EB-31 and EB-32 were brought about by the trend of Indians, Chinese, and Filippinos applying for college level jobs or skilled jobs rather than unskilled jobs. Without doubt, the people who read this posting may rush to file EB-32 petitions probably accelerating the oversubscription of EB-32 visa numbers as well.
Two other points will interplay with the watershed rule of multiple petitions. One is the USCIS policy that the EB-485 applicants can replace the underlying I-140 petitions inasmuch as the original underlying I-140 petition remains valid. The second relevant factor is the current policy of "concurrent filing of I-140/I-485." Let's assume that he/she had an approved I-140 for EB-31 and concurrent I-485 is pending. This I-485 will be shelved from January 1, 2005 because there is no visa number for him or her and there is no sense of USCIS processing such I-485 cases. If he/she files I-140 petition for EB-32 using the EB-31 certified labor certification, he/she may request the Service Centers to replace the underlying EB-31 I-140 petition by EB-32 approved I-140 petition. Should he/she have two different preference approved I-140 petitions, he/she may keep switching the underlying approved I-140 petition depending on which one is favorable. This will keep the pending I-485 alive and kept being processed.
The option involves some level of risk unless one is very knowledgeable of intricacies of interplay of the rules which are described above. People should never attempt to take such option in their own hands. They should seek legal counsel. They should not take this message as a law because it is not. It is an opinion of this reporter and people should not rely on the message on the internet. This reporter will not be responsible for the consequences of such reliance. Please talk to your lawyes!
source: www.immigration-law.com
It is likely that the priority date for EB-3 may move either slow or move further back depending on the pace of USCIS I-485 backlog reduction efforts. Considering the fact that the USCIS will do everything within power to achieve the 6-month processing time goal by September 30, 2006, which is committed by the President Bush, the visa number usage for EB-3 will keep rising adding further pressure on the EB-3 visa priority dates. Facing such challenge, the immigrant community should learn some lessons from prior experiences in the immigration history when the EB-3 numbers were heavily backlogged and Chinese and Indians had to wait a long time to get a green card. When the EB-3 numbers were heavily oversubscribed, the Chinese en masse started filing EB-2 cases, leading to an abnormal movement between EB-2 and EB-3. One time, EB-2 numbers were more backlogged than EB-3. How did they cope with the problem? The answer was filing of "multiple petitions."
In order to understand this option, one has to understand the rule of the employment-based preference immigration petitions. The rule is analogous to a "watershed" or "downhill water stream." For instance, once he/she obtains a "upstream" labor certification application such as EB-2, he/she is also eligible for "downstream" immigrant petitions such as EB-3. Accordinly, in this illustration, if he/she obtains a labor certification approval for EB-2 job, he/she can file two I-140 petitions simultaneously or sequentially, one for EB-2 I-140 petition and the other for EB-3 I-140 petition. If he/she chooses to do that, he/she can also file just a EB-3 petition using the certified EB-2 labor certification application. The same is not allowed from downstream labor certification application to upper stream preference immigrant petitions. For instance, if he/she obtained a labor certification for EB-3, he/she cannot file a EB-2 petition.
If we look at the January 2005 Visa Bulletin, the visa numbers for Indians, Chinese, and Filippinos will be retrogressed to January 1, 2002 for EB-31 (professional with a bachelor's degree or skilled worker requiring minimum of 2-year work experience). Strangely enough, though, the lower stream preference category of EB-32 (other workers requiring less than 2-year of work experience) will remain "current." EB-32 has much less number of visas than EB-31 under the law. The current unusual pattern of priority dates for EB-31 and EB-32 were brought about by the trend of Indians, Chinese, and Filippinos applying for college level jobs or skilled jobs rather than unskilled jobs. Without doubt, the people who read this posting may rush to file EB-32 petitions probably accelerating the oversubscription of EB-32 visa numbers as well.
Two other points will interplay with the watershed rule of multiple petitions. One is the USCIS policy that the EB-485 applicants can replace the underlying I-140 petitions inasmuch as the original underlying I-140 petition remains valid. The second relevant factor is the current policy of "concurrent filing of I-140/I-485." Let's assume that he/she had an approved I-140 for EB-31 and concurrent I-485 is pending. This I-485 will be shelved from January 1, 2005 because there is no visa number for him or her and there is no sense of USCIS processing such I-485 cases. If he/she files I-140 petition for EB-32 using the EB-31 certified labor certification, he/she may request the Service Centers to replace the underlying EB-31 I-140 petition by EB-32 approved I-140 petition. Should he/she have two different preference approved I-140 petitions, he/she may keep switching the underlying approved I-140 petition depending on which one is favorable. This will keep the pending I-485 alive and kept being processed.
The option involves some level of risk unless one is very knowledgeable of intricacies of interplay of the rules which are described above. People should never attempt to take such option in their own hands. They should seek legal counsel. They should not take this message as a law because it is not. It is an opinion of this reporter and people should not rely on the message on the internet. This reporter will not be responsible for the consequences of such reliance. Please talk to your lawyes!
source: www.immigration-law.com