12/04/2004: Agonizing Waiting Time for Indian, Chinese, Filippino Employment Immigration Aspirants
Most employment immigration aspirants expect to witness the wind blowing towards the direction in their favor. Labor certification reform is underway to reduce the backlogs and to reduce the processing times of permanent labor certification applicaitons. USCIS is pushing forward its plan to reduce the processing times of permanent residence applications pursuant to the Bush's five-year 6-month processing time commitment. Additionally, upcoming cutoff dates for EB-3 employment immigration visa numbers for India, China, and Philippines will help the processing times for permanent immigration proceedings for nationals other than these three nations. As we repeatedly stated in the past, life is an irony in that generally one group has to suffer to give a room for other group because of the immigration quota system. There is no reliable information available about the depth of the retrogression of EB-3 numbers for these three countries, but rumors reflect that the retrogression may turn out to be steep.
Generally, employment-based immigration opportunities are getting narrower for the people from these three countries because of the U.S. government actons to restrict certain L-1B intracompany transferee nonimmigrants, H-1B professional workers other than holders of higher-level education, plus immigrant visa number retrogression. When it comes to the visa numbers, the retrogression of EB-3 numbers will definitely add pressure on EB-2 numbers for these three nations as it is likely that a large number of EB-2 aspirants will come from these three nations. In the long haul, it will eventually affect EB-2 numbers for these people just as the country experienced not too long back in the history of immigration in this country. The people from these countries will just have to prepare themselves for the changing immigration environment. The following factors, among others, need increased attention for the people from these three nations. (1) Unavailable concurrent I-140/I-485 filing and ancillary benefits of EAD and Advance Parole pending I-485 application. It will substantially block out the opportunity for AC 21 180-day rule of change of employment pending I-485 applications and may demand a faithful adherence to the immigrant petition sponsor or labor certification sponsor employer. Accordingly, it will restrict mobility of the H-1B workers during the period of unavailable visa numbers. Changing the employers during the stage of labor certification will kill the priority date unless the intial labor certification is continued by the former employer and I-140 petition is approved through the approval of the intital labor certification application. Changing employers will still turn out to be very risky. (2) 7-Year H-1B extension. Under the current rule, the opportunity for 7th-year H-1B extension after 365 days of pending labor certification application or petition will be wiped out if the labor certification or petition is denied and the decision becomes "final." Such "final" action will kill the opportunity for 7-year extension of H-1B which become increasingly important for the immigration journey. If such "final" action is taken at the stage of labor certification application, so goes the priority date. For the purpose of the 7-year extension eligibility, the change of employers and filing a new labor certification application will not affect his/her eligibility because the USCIS currently takes a position that the retention of 365-day is "alien-based" and the alien can carry such 365-day for the purpose of 7th year H-1B extension, provided that the intial labor certification is not denied and such decision does not become "final." Additionally, even if he/she is successful in keeping the 7th-year extension eligiblity, he/she will lose the priority date by changing the employers and starting a new labor certification application in the event that initial employer withdraws or substitutes the alien beneficiary at the stage of initial labor certification application. It is going to be deadly! (3) USCIS policy on processing I-140 petition during the period of visa number unavailability. Even during the period of visa number unavailability, approval of I-140 petition is important when they change the employers and want to retain the priority date. Currently, unless I-140 petition is approved, the priority date cannot be retained. At this time, though, it is an open question whether the USCIS will continuously process I-140 petitions for those whose visa numbers will not be available for a substantial period of time.