Disaster Hits the EB-3 Category; Could EB-2 Be Next?
Absent Congressional action, employment-based (EB) immigration to the
U.S.is flirting with disaster.Almost 30 years ago, when I became an immigration attorney, there were only two EB categories, the 3rd (professional) and the 6th (nonprofessional) preference categories. For some countries, the 3rd preference category was backlogged over a dozen years. The trick then was to switch professionals from the 3rd category into the less-backlogged 6th category. This enabled hundreds of our clients to obtain green cards in 90 days or less.The big change came with the passage of the Immigration Act of 1990. The number of EB categories expanded from two to five (EB-1 Priority Workers, EB-2 Advanced Degreed Professionals, EB-3 Professionals and Other Workers,EB-4 Special Immigrants and EB-5 Investors). The number of persons who Could immigrate under the EB categories more than doubled from 54,000 to 140,000 annually.The new system contained one major flaw. If less than 140,000 EB workers and their spouses and children obtained permanent residence in a fiscal year (October 1 - September 30), the numbers were lost forever, and backlogs developed in future years.This was not a problem in the early 1990s as the INS processed most applications for adjustment of status in 90 days or less. Since most
EB applicants are already working in the U.S. in temporary working status, most of the processing is done stateside by the INS.
However, with the passage of section 245(i) in 1994, the birth of the
World Wide Web in 1995 and the subsequent dotcom explosion, the H-1B cap was raised from 65,000 to 115,000 and again to 195,000. Hundreds of thousands of computer professionals as well as business professionals, healthcare professionals, teachers, scientists, engineers and accountants all applied for permanent residence.
INS could not keep up with the ever-increasing demand for green cards,
And multi-year backlogs developed in the EB-3, EB-2 and even the EB-1
category.In 2000, former President Clinton signed the American Competitiveness in the 21st Century Act (AC-21) which, among other things, allowed over a quarter of a million “lost” EB adjustment applications to be “recaptured”. AC-21 saved EB immigration, especially after September 11, 2001 when INS processing of EB adjustment applications ground to a virtual halt. The combination of AC-21 and the INS slowdown in application processing had a strange, but predictable, effect on the State Department’s monthly VisaBulletin. Since so few EB green cards were issued by the INS in 2001-2003 despite hundreds of thousands of additional numbers provided by AC-21, all of the EB categories became “current”. As more and more labor
certifications and I-140 visa petitions were approved, INS was deluged with hundreds of thousands of EB adjustment applications, most of which remained unadjudicated at Service Centers.In 2004, the number of approvals increased dramatically. This resulted in a three-year “retrogression” in the EB-3 category for persons born in India,China and the Philippines on January 1, 2005.In early 2005, the CIS approved over 20,000 EB adjustments monthly.This number increased to 30,000 per month in the spring. As a result the EB-3 category ran out of numbers and became “unavailable” starting on July 1, 2005,not just for some persons, but for everyone. This means that if you are in the EB-3 category, you can not apply for permanent residence until October 1st at the earliest. If your EB-3 adjustment application is currently pending,you will not be receiving your green card this summer.
What happens to the EB-3 category on October 1st, the beginning of the
New fiscal year? This is anybody’s guess, but we do know that all of the green cards “recaptured” by AC-21 have already been used up. Just as the H-1B cap fell from 195,000 to 65,000 last October, the total number of EB green cards will fall from 249,000 this fiscal year to 140,000 in the coming fiscal year.
And just like the 20,000 extra H-1B visas which were added by Congress
This year (which are only available to persons with advanced degrees from U.S.universities), Congress added 50,000 extra green cards (which are only available to persons in the Schedule A category - registered nurses,physical therapists and persons of exceptional ability). We believe that these extra visas will be used over a period of three years. In all probability,persons in the EB-3 category will face multi-year retrogressions. This means that only people with extremely old EB-3 priority dates will be able to adjust their status.
Since the CIS can no longer approve EB-3 adjustment applications, Service Centers have turned their attention to processing adjustment applications in the EB-2 category (persons of exceptional ability or those whose jobs require advanced degrees). The predictable result will be that the EB-2 category, at least for persons born in India and China, will soon retrogress,possibly as early as August 1st. We will know for sure when the August Visa Bulletin is released in mid-July.
If you are in the EB-2 category, what is the best strategy for you to pursue? If your labor certification or PERM application has been approved, be sure to submit your I-140/I-485 before August 1st. Of course, only a few PERM applications have been approved. And chances are that your labor certification (“LC”) is one of the hundreds of thousands pending in one of the DOL Backlog Reduction Centers. However, what seems like a curse may turn out to be a blessing.
If your LC has been pending for over one year, and you are in H-1B
status, you are eligible to obtain H-1B extensions even after your 6th year. If you are a professional in a nonimmigrant status for which there is a maximum duration,consider changing your status to H-1B while there are still H-1B numbers available. If you are a physician, you have may have another alternative.If you are a primary care physician who is employed in a medically-underserved area, you may choose to submit a National Interest Waiver and an I-485 simultaneously.
Also, if you are a person of extraordinary ability, are an outstanding
professor or researcher or are a multinational executive or manager,
submit your I-140/I-485 under EB-1. We don’t expect the EB-1 category to retrogress any time soon.Other alternatives include the visa lottery, the investor and religious worker categories and, of course, family-based immigration, particularly if your relative is a spouse who is a citizen of the United States.
(Thanks to shusterman.com )
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