Impact of Priority Date Changes in July and Upcoming PERM LC Program
As reported on this website, DOS Charles Oppenheim predicted that EB-3 and EB-3EW are "likely" to see the priority dates "current" in July. Even though it is unclear when DOL will start PERM Program, this new labor certification program also promises to complete permanent labor certification from one week to two weeks. These changes will affect the fate of EB immigrants at different stages and this reporter wants to review some of those impacts.
Should the priority date indeed become current in July for EB-3 and EB-3EW, it is anticipated that demand for the visa numbers in these categories will increase dramatically. DOS thus predicts that because of such surge of demand for visa numbers, the priority dates for "unskilled worker" category, EB-3EW, is anticipated to "retrogress" substantially early next year. This reporter is unsure as to what he meant by "next year," but wishes to presume that he meant calendar year and not fiscal year. Thus the July Visa Bulletin is likely to bring a mixed bag to EB-3EW 485 filers: They will be able to file 485 beginning from July 1 and also remain and work in this country until their green card is approved. Most of these people may also be beneficiary 245(i) since they filed the labor certification before December 21, 2000. Bad news is that they may have to wait a long time before they can get Green Card because of the anticipated retrogression of priority dates and the INS\' processing delays in 485 processing. Under the immigration law, Green Card cannot be approved unless at the time of actual determination of 485, the priority date is available for him/her. For instance, assume that the Service Center was about to adjudicate his/her case 1st day of the following month and the visa number is currently available. Assume also that the American Consulate scheduled immigrant interview in the same manner. Hypothetically, assume also that priority dates for his/her category retrogresses in the following months. Neither the Service Center nor the American Consul will be able to approve 485 or IV on or after the 1st day of that following month. However, retrogression will not affect their eligibility for EAD and AP while they continuously wait for their priority date. The only risk is that the underlying employment can be terminated or disappear, jeopardizing 485 eligibility! These people should immediately consult with their legal counsel "as soon as July Visa Bulletin is released" to review whether any options may be available to get immigrant status before the priority date retrogresses, such as consular IV processing without withdrawing pending 485 application.
Should the priority date indeed become current in July for these categories, the Service Centers will be flooded with 485 applications, seriously affecting the processing times. People will remember previous experience about three years ago when the priority dates became current in August. Probably President Bush did not anticipate this type of change when he announced that he would commit to 6-month processing times for all the applications and petitions, presumably including 485. The turn of the subsequent event can make his announcement an empty-hand promise. It is more true if we consider the impact of upcoming so-called PERM Program of permanent labor certification, which will definitely open a huge flood-gate to the INS and the American Consulates! The INS and the American Consulates are not quite in pace with these on-going and forth-coming changes when it comes to reengineering of immigration procedure and electronic automation of the legal process. It is imperative that the INS immediately commence one-step filing procedure (140/485) and electronic filing system. Otherwise, the INS which is already under fire by the Congress for delays in case handling will face a serious political challenge. Remember that immigration agency restructure bill has been pe
As reported on this website, DOS Charles Oppenheim predicted that EB-3 and EB-3EW are "likely" to see the priority dates "current" in July. Even though it is unclear when DOL will start PERM Program, this new labor certification program also promises to complete permanent labor certification from one week to two weeks. These changes will affect the fate of EB immigrants at different stages and this reporter wants to review some of those impacts.
Should the priority date indeed become current in July for EB-3 and EB-3EW, it is anticipated that demand for the visa numbers in these categories will increase dramatically. DOS thus predicts that because of such surge of demand for visa numbers, the priority dates for "unskilled worker" category, EB-3EW, is anticipated to "retrogress" substantially early next year. This reporter is unsure as to what he meant by "next year," but wishes to presume that he meant calendar year and not fiscal year. Thus the July Visa Bulletin is likely to bring a mixed bag to EB-3EW 485 filers: They will be able to file 485 beginning from July 1 and also remain and work in this country until their green card is approved. Most of these people may also be beneficiary 245(i) since they filed the labor certification before December 21, 2000. Bad news is that they may have to wait a long time before they can get Green Card because of the anticipated retrogression of priority dates and the INS\' processing delays in 485 processing. Under the immigration law, Green Card cannot be approved unless at the time of actual determination of 485, the priority date is available for him/her. For instance, assume that the Service Center was about to adjudicate his/her case 1st day of the following month and the visa number is currently available. Assume also that the American Consulate scheduled immigrant interview in the same manner. Hypothetically, assume also that priority dates for his/her category retrogresses in the following months. Neither the Service Center nor the American Consul will be able to approve 485 or IV on or after the 1st day of that following month. However, retrogression will not affect their eligibility for EAD and AP while they continuously wait for their priority date. The only risk is that the underlying employment can be terminated or disappear, jeopardizing 485 eligibility! These people should immediately consult with their legal counsel "as soon as July Visa Bulletin is released" to review whether any options may be available to get immigrant status before the priority date retrogresses, such as consular IV processing without withdrawing pending 485 application.
Should the priority date indeed become current in July for these categories, the Service Centers will be flooded with 485 applications, seriously affecting the processing times. People will remember previous experience about three years ago when the priority dates became current in August. Probably President Bush did not anticipate this type of change when he announced that he would commit to 6-month processing times for all the applications and petitions, presumably including 485. The turn of the subsequent event can make his announcement an empty-hand promise. It is more true if we consider the impact of upcoming so-called PERM Program of permanent labor certification, which will definitely open a huge flood-gate to the INS and the American Consulates! The INS and the American Consulates are not quite in pace with these on-going and forth-coming changes when it comes to reengineering of immigration procedure and electronic automation of the legal process. It is imperative that the INS immediately commence one-step filing procedure (140/485) and electronic filing system. Otherwise, the INS which is already under fire by the Congress for delays in case handling will face a serious political challenge. Remember that immigration agency restructure bill has been pe