Pending Green Card under EB3 Read This......
Who Is EB3?
The issue of unavailability of visa numbers relates to green card cases only. It does not limit eligibility for any of the nonimmigrant categories, such as H-1, L-1, J-1, F-1, O-1, B-1 or any other "lettered" status category. There are three affected categories of EB3 workers: persons who have bachelor's degrees (professionals); persons who have at least 2 years of experience in the job offered (skilled workers); and persons who have less than 2 years of experience in the job offered (other workers). In order for a job to fall into one of these categories, one must have the required criteria, and the employer must consider the criteria a minimum requirement for the job. For example, if a person has a master's degree but the employer requires only a bachelor's degree for the job, the petition is considered an EB3 (professional) petition. If one is not sure of the category, s/he may want to check the I-140 receipt notice, if the case has reached that point. The I-140 receipt notice should reflect INA Section 203(b)(3)(i) for EB3 skilled workers, 203(b)(3)(ii) for professionals and 203(b)(3)(iii) for other workers. Otherwise, it may be necessary to ask the attorney who filed the case for the category assigned to the case.
Exception - Schedule A Workers
A Schedule A case, which include nurses and physical therapists, is in EB3. This is a special subcategory, however, and is not subject to the unavailability at this time. More information on Schedule A visa number predictions can be found below.
What Does this Mean for EB3s?
This means that, as of July 1, 2005 and continuing until more visa numbers are available, a person in the EB3 category will not be able to file the I-485 Application for Adjustment of Status nor proceed to issuance of an immigrant visa at a U.S. consulate abroad. A pending I-485 or Consular Processing case in this category will remain pending until a visa number for the case becomes available. A foreign national with an I-485 pending is considered lawfully present in the United States and is permitted to remain in the U.S. pending the case outcome.
How Long will the Unavailability Last?
The U.S. government runs on a fiscal year (FY) that is on an October-through-September cycle. Therefore, the first day of the government's fiscal year is always October 1st, and the last day is always September 30th. According to the Visa Bulletin, the visa numbers for the EB3 category have reached their annual limit. This means that they have run out for the current fiscal year and that the visa numbers in the EB3 category, including other workers, will not be available again until October 1, 2005, which is the start of the FY2006.
Presently, it is unknown whether the category will be current at that time or if there will be a cut-off date. Current visa numbers are indicated with "C" in the Visa Bulletin. The designation of current means that there are sufficient visa numbers for everyone, no matter what the priority date of the case. When there are limited visa numbers available, the DOS establishes cut-off dates. This means that there are enough visa numbers only for those cases filed before the cut-off date. These dates appear in the Visa Bulletin each month. Often cut-off dates are established for certain countries with high levels of immigration. No country is allowed to use more than 7% of the total visa numbers for the year. Therefore, availability may be limited depending upon one's country of origin. The countries typically affected are India, mainland China, and the Philippines in the employment-based categories, and sometimes the Philippines and Mexico in family-based categories.
Thus, this problem will last at least until October 1, 2005. Prior to this, the visa numbers in the EB3 category had established cut-off dates in the other worker category for all countries and in the professional / skilled worker categories for persons from India, mainland China, and the Philippines.
File I-485s before July 1, 2005
If any eligible person, whose priority date is current as of mid-June 2005 in the EB3 category, has delayed processing an I-485 application, it is best to file prior to July 1, 2005. Otherwise, the earliest possible date that the case could be filed would be October 1, 2005. As explained above, however, there is no guarantee that the cut-off dates will permit filing even on October 1, 2005, for all EB3 cases, since a cut-off date could likely be established at that time.
If an I-485 is pending when visa numbers retrogress or become unavailable, the I-485 will not be fully processed until the visa numbers are available for that case's priority date. The person may file for Employment Authorization Documents (EADs) and Advance Paroles (APs) as needed only while the I-485 is pending, however.
Spouses / Children
A derivative spouse and the child/ren in employment-based green card cases are assigned the same category and priority date as the primary beneficiary. Their cases follow the same rule requiring visa availability at the time of filing. This creates a variety of problematic situations when the cases for an entire family are not or cannot be filed at the same time. If the spouse and/or child/ren have not filed the I-485, but are in the U.S. and are eligible to do so, they should file while they can. A spouse who is outside the U.S. and unable to proceed with her/his green card case before July 1, 2005, may have to spend more time abroad than anticipated. Anyone with questions about how this matter will affect his or her family should consult with a qualified immigration attorney.
EB2 Category Still Current
The employment-based second preference (EB2) numbers remain current for July 2005. There has been concern, however, that the EB2 category may retrogress before the end of the fiscal year. Therefore, persons in the EB2 category should not assume that there is plenty of time to file the I-485 application. They are at least eligible during the month of July 2005. If the case has reached the point where filing is permitted, it is best to take advantage of this fact in most situations and file the case in July 2005.
Schedule A Workers Safe for Some Time
For Schedule A Workers, the DOS plans to take visa numbers from the appropriate category, usually EB3, when they are available. If the numbers have retrogressed either to a point before a particular Schedule A worker's priority date, or have become unavailable, the DOS will provide one of the 50,000 specially-allocated visa numbers for that person. Since the EB3 numbers are unavailable until October 1, 2005, any immigrant visas or I-485 approvals from July 1, 2005 until October 1, 2005 will be counted against the 50,000 limit. The DOS does not expect that these numbers will be exhausted in the foreseeable future.
The Silver Lining
Almost every problem in immigration has at least some benefit; the proverbial silver lining in the dark cloud of retrogression. For visa unavailability, two things come to mind.
The first is marriage timing. Many people wait until their I-485s are pending to plan their marriages. It is necessary, however, to get married before the I-485 approval in order for the new spouse to be eligible for the same employment-based category and same priority date as the primary spouse. Marriage after the green card is approved means the case becomes a family case, with a waiting time for visa number availability in the family category that is normally five to seven years. Thus, those EB3 individuals who have delayed making marriage plans or have plans sometime during July through September 2005, because of visa number unavailability, will not have their cases approved before their weddings.
The second issue pertains to changes in jobs. Under AC21, it is possible to change jobs after the I-485 has reached the 180-day point. It is generally understood, however, that it is best to make this change before the green card is approved. With visa unavailability, EB3 individuals know that their I-485 cases are going to remain pending at least through the end of September 2005, and possibly longer, especially for nationals of India, mainland China, and the Philippines.
H1B Extensions
If a person has not filed the I-485, it is necessary to maintain a proper nonimmigrant status in order to lawfully remain in the United States. There are provisions for extensions of H1B status beyond the six-year limitation that may be useful in the situation where one cannot file the I-485. These are discussed in detail in our Jun 10, 2005 MurthyBulletin article, Yates May 2005 Memo: H1B Provisions, available on MurthyDotCom. It is fortunate that these H1B extension provisions are available.
Retrogression Only Impacts Filing the I-485 / Obtaining the IV
The problem discussed above only impacts the final stage of the green card case, filing the I-485 or obtaining the I-485 approval, or obtaining the immigrant visa (IV) at the consulate abroad. It does not affect the ability to start the case and obtain approval of the labor certification and I-140 petition. Thus, this is not a reason to delay starting a green card case. To the contrary, as priority dates have become vitally important once again, the earlier filing date is likely to be quite beneficial in the ultimate timing and processing of a case.
Who Is EB3?
The issue of unavailability of visa numbers relates to green card cases only. It does not limit eligibility for any of the nonimmigrant categories, such as H-1, L-1, J-1, F-1, O-1, B-1 or any other "lettered" status category. There are three affected categories of EB3 workers: persons who have bachelor's degrees (professionals); persons who have at least 2 years of experience in the job offered (skilled workers); and persons who have less than 2 years of experience in the job offered (other workers). In order for a job to fall into one of these categories, one must have the required criteria, and the employer must consider the criteria a minimum requirement for the job. For example, if a person has a master's degree but the employer requires only a bachelor's degree for the job, the petition is considered an EB3 (professional) petition. If one is not sure of the category, s/he may want to check the I-140 receipt notice, if the case has reached that point. The I-140 receipt notice should reflect INA Section 203(b)(3)(i) for EB3 skilled workers, 203(b)(3)(ii) for professionals and 203(b)(3)(iii) for other workers. Otherwise, it may be necessary to ask the attorney who filed the case for the category assigned to the case.
Exception - Schedule A Workers
A Schedule A case, which include nurses and physical therapists, is in EB3. This is a special subcategory, however, and is not subject to the unavailability at this time. More information on Schedule A visa number predictions can be found below.
What Does this Mean for EB3s?
This means that, as of July 1, 2005 and continuing until more visa numbers are available, a person in the EB3 category will not be able to file the I-485 Application for Adjustment of Status nor proceed to issuance of an immigrant visa at a U.S. consulate abroad. A pending I-485 or Consular Processing case in this category will remain pending until a visa number for the case becomes available. A foreign national with an I-485 pending is considered lawfully present in the United States and is permitted to remain in the U.S. pending the case outcome.
How Long will the Unavailability Last?
The U.S. government runs on a fiscal year (FY) that is on an October-through-September cycle. Therefore, the first day of the government's fiscal year is always October 1st, and the last day is always September 30th. According to the Visa Bulletin, the visa numbers for the EB3 category have reached their annual limit. This means that they have run out for the current fiscal year and that the visa numbers in the EB3 category, including other workers, will not be available again until October 1, 2005, which is the start of the FY2006.
Presently, it is unknown whether the category will be current at that time or if there will be a cut-off date. Current visa numbers are indicated with "C" in the Visa Bulletin. The designation of current means that there are sufficient visa numbers for everyone, no matter what the priority date of the case. When there are limited visa numbers available, the DOS establishes cut-off dates. This means that there are enough visa numbers only for those cases filed before the cut-off date. These dates appear in the Visa Bulletin each month. Often cut-off dates are established for certain countries with high levels of immigration. No country is allowed to use more than 7% of the total visa numbers for the year. Therefore, availability may be limited depending upon one's country of origin. The countries typically affected are India, mainland China, and the Philippines in the employment-based categories, and sometimes the Philippines and Mexico in family-based categories.
Thus, this problem will last at least until October 1, 2005. Prior to this, the visa numbers in the EB3 category had established cut-off dates in the other worker category for all countries and in the professional / skilled worker categories for persons from India, mainland China, and the Philippines.
File I-485s before July 1, 2005
If any eligible person, whose priority date is current as of mid-June 2005 in the EB3 category, has delayed processing an I-485 application, it is best to file prior to July 1, 2005. Otherwise, the earliest possible date that the case could be filed would be October 1, 2005. As explained above, however, there is no guarantee that the cut-off dates will permit filing even on October 1, 2005, for all EB3 cases, since a cut-off date could likely be established at that time.
If an I-485 is pending when visa numbers retrogress or become unavailable, the I-485 will not be fully processed until the visa numbers are available for that case's priority date. The person may file for Employment Authorization Documents (EADs) and Advance Paroles (APs) as needed only while the I-485 is pending, however.
Spouses / Children
A derivative spouse and the child/ren in employment-based green card cases are assigned the same category and priority date as the primary beneficiary. Their cases follow the same rule requiring visa availability at the time of filing. This creates a variety of problematic situations when the cases for an entire family are not or cannot be filed at the same time. If the spouse and/or child/ren have not filed the I-485, but are in the U.S. and are eligible to do so, they should file while they can. A spouse who is outside the U.S. and unable to proceed with her/his green card case before July 1, 2005, may have to spend more time abroad than anticipated. Anyone with questions about how this matter will affect his or her family should consult with a qualified immigration attorney.
EB2 Category Still Current
The employment-based second preference (EB2) numbers remain current for July 2005. There has been concern, however, that the EB2 category may retrogress before the end of the fiscal year. Therefore, persons in the EB2 category should not assume that there is plenty of time to file the I-485 application. They are at least eligible during the month of July 2005. If the case has reached the point where filing is permitted, it is best to take advantage of this fact in most situations and file the case in July 2005.
Schedule A Workers Safe for Some Time
For Schedule A Workers, the DOS plans to take visa numbers from the appropriate category, usually EB3, when they are available. If the numbers have retrogressed either to a point before a particular Schedule A worker's priority date, or have become unavailable, the DOS will provide one of the 50,000 specially-allocated visa numbers for that person. Since the EB3 numbers are unavailable until October 1, 2005, any immigrant visas or I-485 approvals from July 1, 2005 until October 1, 2005 will be counted against the 50,000 limit. The DOS does not expect that these numbers will be exhausted in the foreseeable future.
The Silver Lining
Almost every problem in immigration has at least some benefit; the proverbial silver lining in the dark cloud of retrogression. For visa unavailability, two things come to mind.
The first is marriage timing. Many people wait until their I-485s are pending to plan their marriages. It is necessary, however, to get married before the I-485 approval in order for the new spouse to be eligible for the same employment-based category and same priority date as the primary spouse. Marriage after the green card is approved means the case becomes a family case, with a waiting time for visa number availability in the family category that is normally five to seven years. Thus, those EB3 individuals who have delayed making marriage plans or have plans sometime during July through September 2005, because of visa number unavailability, will not have their cases approved before their weddings.
The second issue pertains to changes in jobs. Under AC21, it is possible to change jobs after the I-485 has reached the 180-day point. It is generally understood, however, that it is best to make this change before the green card is approved. With visa unavailability, EB3 individuals know that their I-485 cases are going to remain pending at least through the end of September 2005, and possibly longer, especially for nationals of India, mainland China, and the Philippines.
H1B Extensions
If a person has not filed the I-485, it is necessary to maintain a proper nonimmigrant status in order to lawfully remain in the United States. There are provisions for extensions of H1B status beyond the six-year limitation that may be useful in the situation where one cannot file the I-485. These are discussed in detail in our Jun 10, 2005 MurthyBulletin article, Yates May 2005 Memo: H1B Provisions, available on MurthyDotCom. It is fortunate that these H1B extension provisions are available.
Retrogression Only Impacts Filing the I-485 / Obtaining the IV
The problem discussed above only impacts the final stage of the green card case, filing the I-485 or obtaining the I-485 approval, or obtaining the immigrant visa (IV) at the consulate abroad. It does not affect the ability to start the case and obtain approval of the labor certification and I-140 petition. Thus, this is not a reason to delay starting a green card case. To the contrary, as priority dates have become vitally important once again, the earlier filing date is likely to be quite beneficial in the ultimate timing and processing of a case.
Last edited by a moderator: