What is the Visa Bulletin?
The Immigration and Nationality Act (INA) sets annual limits for family-sponsored and employment-based preference immigrant visas.  There are 140,000 employment based immigrant visas available each fiscal year.  Any unused family-sponsored immigrant visas in the fiscal year may be used by eligible and qualified employment based applicants.  U.S. Consular Officers report allocated visas to the U.S. Department of State; similarly, US Citizenship and Immigration Service Center Adjudicators report numbers for adjustment of status applicants to Department of Homeland Security.  Based on these reports, the Department of State issues a monthly bulletin which projects the availability of immigrant visas for family-sponsored and employment based immigration visas for the month ahead.

What is EB1?
EB-1 or employment based First Preference is reserved for “priority workers.”  This includes (1) Persons of Extraordinary Ability; (2) Outstanding Professors and Researchers; and (3) Multinational Executives and Managers.   All three categories are exempt from the Labor Certification requirement.

What is EB2?
EB-2 or employment based Second Preference is reserved for (1) Members of Professions requiring Advanced Degrees and (2) Persons of Exceptional Ability, including those that are eligible for a National Interest Waiver.  National Interest Waiver applications are also Labor Certification exempt.

What is EB3?
EB-3 or employment based Third Preference is divided into two subcategories: (1) Professional and Skilled Workers and (2) Other workers.  Professionals include qualified immigrants who hold baccalaureate degrees and are members of a profession.  Skilled Workers include qualified immigrants who are capable, at the time of petitioning for classification, of performing skilled labor (requiring at least 2 years training or experience), not of a temporary or seasonal nature.

What is EB3 – “Other Worker”?
The employment based Third Preference also includes a subcategory for “Other Workers.”  This subclass involves qualified immigrants who are capable, at the time of petitioning for classification, of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States

What is Schedule A?
Schedule A occupations are those recognized and identified by the U.S. Department of Labor (DOL) as occupations that do not have sufficient U.S. workers who are able, willing, qualified, and available and in which the wages and working conditions of U.S. workers will not be adversely affected by the hiring of foreign nationals for these positions.  As such, employers may bypass the Labor Certification process (which involves a comprehensive labor market test to determine the availability of U.S. workers) and file directly with the U.S. Citizenship and Immigration Service (CIS).
Schedule A pre-certified occupations fall under two groups: Group I includes Registered Nurses and Physical Therapists; Group II includes persons of exceptional ability in the sciences and arts (except for performing artists), and university professors.

How does visa number retrogression and resulting per country backlogs impact my Green Card processing?
The potential impact depends on the stage of the Green Card process you are currently in.  For most individuals, the employment based immigration process is comprised of three steps – Labor Certification; the Petition for Immigrant Visa (I-140); and the Adjustment of Status (I-485) or Immigrant Visa processing at a U.S. Consulate abroad.  EB-1 and National Interest Waiver candidates are exempt from the Labor Certification component, and thus, must only go through a two step process involving the submission of the Immigrant Petition (I-140) and the Adjustment of Status (I-485) or Visa Processing abroad.

In order to submit an Application for Adjustment of Status (I-485) or apply for an Immigrant Visa abroad, an individual must have an immigrant visa that is immediately available to him or her.  In other words, you must possess a “current” priority date.  The cut off date that appears on the Visa Bulletin represents the priority date of the first applicant who could not be reached due to numeric limits.

What is a priority date?  How can I obtain one?
Priority dates determine the order of availability for immigrant visas.  For employment based cases, the priority date is either the date stamped on the State Workforce Agency receipt notice if filed under the former system or the date submitted online under the new PERM process.  For labor certification exempt cases, the date the petition for immigrant visa is filed with U.S. CIS.  An employment based 1st, 2nd or 3rd preference beneficiary is entitled to the earliest priority date where subsequent 1st, 2nd or 3rd preference petitions have been submitted, unless the prior petitions have been revoked due to fraud.

Ex: Indian born individual is the beneficiary of a labor certification involving requirements that qualify the position for EB-2 classification. The individual’s employer has submitted a PERM Labor Certification on 5/1/2005.  This would serve as the individual’s priority date.  According to the October 2005 Visa Bulletin, the cut off date for EB-2 India is 11/1/1999.  Assuming the PERM application is approved in October 2005, the individual would be subject to the India backlog in the EB-2 classification.  The employer would be able to move forward and file the I-140, however, the individual would not be able to file the Adjustment of Status until his priority date, 5/1/2005 becomes current.  However, if the individual happens to have been the beneficiary of an approved I-140 based on a Labor Certification submitted by a previous employer in 10/24/1999, the individual is entitled to the earlier priority date and would be able to move forward with a concurrent I-140 and AOS filing in October.

In most cases, derivative beneficiaries, including spouses and minor children, are granted the same priority date as the principal beneficiary as long as the marriage is intact, the child is under 21 years of age pursuant to the Child Status Protection Act, and the family is accompanying the principal or following to join.

What are per country limits?
The Immigration and Nationality Act limits the number of visas available each year for applicants from a particular country.  No country may represent more than 7% of the total number of visas allotted for each fiscal year.  This is roughly equivalent to 25,620 per country visas.  If the demand can not be satisfied within the statutory or regulatory limits, the category or foreign country in which demand was excessive will be deemed oversubscribed or backlogged.  Individuals who are subject to per country limits must wait until additional visas become available in order to submit an Adjustment of Status application with U.S. CIS or apply for an immigrant visa at a U.S. Consulate abroad.

I was born in India, but I am currently a Canadian citizen. Am I subject to the India backlog?
The concept of chargeability determines whether an individual is subject to a particular country’s quota.  For immigrant visa purposes, individuals are generally chargeable to the country of birth – not the individual’s current country of citizenship or nationality.  Thus, a principal beneficiary who is born in India would be subject to the India quota even if he/she is currently a Canadian Citizen.

Are Taiwan and Hong Kong subject to China backlog?
No, individuals chargeable to Taiwan and Hong Kong are not subject to China backlogs.

What if my spouse is not a citizen of a backlogged nation?
Under the concept of cross-chargeability, spouses may be charged to the country of an accompanying spouse.  Similarly, minor children who are accompanying or following to join may be chargeable to country of either parent.

Thus, if an EB-2 beneficiary is born in Beijing, China, s/he would be subject to the China backlog in that visa class.  However, if the individual’s spouse was born in Canada, this would enable the individual to be cross chargeable to the spouse’s country (Canada) and potentially avoid being subject to any per country limit that exists in the visa class.  As discussed above, derivative beneficiaries are chargeable to the principal beneficiary’s preference classification.

Does filing a Labor Certification or Petition for Immigrant Visa provide me with work authorization?
No.  You must maintain a work authorized nonimmigrant visa status in order to continue to work in the United States.

What is an Adjustment of Status?
Individuals who are lawfully present in the United States and have an immigrant visa that is immediately available have the option of applying for Permanent Resident (“Green Card”) status without having to leave the country.  This is referred to as filing for Adjustment of Status.  Individuals apply for adjustment of status on Form I-485.  The application is generally submitted to the US CIS Service Center that has jurisdiction over the applicant’s location of residence. Upon approval of the I-485 by the US CIS, the individual becomes a Lawful Permanent Resident (Green Card).

The filing of the Adjustment of Status (I-485) is significant in that individuals are eligible to apply for work and travel authorization while the application is pending review with U.S. CIS.  Once the work and travel authorization is issued, individuals will no longer have to rely on a work authorized non-immigrant visa in order to continue employment in the U.S. or travel abroad.

Can I apply at a US Consulate as an alternative?
As described above, only individuals who are lawfully present in the United States are eligible to adjust status. Applying for an immigrant visa at a U.S. Consulate is an alternative to submitting an Application for Adjustment of Status (I-485) in the United States for those who (1) are outside the United States, (2) are ineligible to adjust status; and (3) elect to apply at a U.S. Consulate for convenience or strategic reasons. Applicants are subject to priority date/per country backlogs and must have a current priority date in order to obtain an immigrant visa interview.

When am I eligible to apply for work authorization or advance parole?
Generally, applicants who are eligible to submit an Application for Adjustment of Status (I-485) are also eligible to apply for an Employment Authorization Document and Travel Authorization (Advance Parole).  Both are issued in one year increments and may be renewed for additional one year periods while the AOS application is pending final adjudication at the US CIS Service Center.

If I am not able to file an Adjustment of Status due to visa number retrogression, can I extend my NIV status?
It depends.  Careful consideration must be given depending on the specific nonimmigrant visa classification you currently hold.  As there are myriad factors to consider, it is recommended that you discuss all possible options with an immigration attorney.  Factors include length of time spent in the U.S., the specific maximum period of stay for the visa class, whether the visa class allows for dual intent or requires non-immigrant intent, and whether there are better nonimmigrant visa options based on your specific circumstances.

Am I eligible for H-1B extension? What if I am near my six year limit?
The American Competitiveness in the 21st Century Act (AC 21) included two provisions that allow H-1B non-immigrants who have been subject to lengthy processing time delays extensions of stay beyond the six year limit.  H-1B non-immigrants may seek either (1) one year extensions as provided under Section 106(a) OR (2) an extension of up to three years as provided under Section 104(c).

Section 106(a) of AC 21 permits an alien to obtain an extension of H-1B status beyond the six-year maximum period when 365 days or more have passed since the filing of (a) a labor certification that is required or used by the alien to obtain status as an employment-based immigrant, or (b) an Immigrant Petition (I-140).

Section 104(c) of AC21 allows an H-1B nonimmigrant with an approved Immigrant Petition (I-140) who cannot adjust status because of per-country limits to extend his/her H-1B nonimmigrant status beyond the six-year limit until his/her application for adjustment of status has been adjudicated . The current US CIS policy establishes that the beneficiary must have an approved Immigrant Petition (I-140) in order to qualify for the ability to request an extension of status. If eligibility requirements are met, extensions of H-1B status beyond the initial six-year limit may be requested in increments of up to three years.

What is the impact on my dependents?  What if my spouse and children are abroad?
Visas granted to derivative beneficiaries, including spouses and minor children, who accompany or follow to join the principal beneficiary are charged to the principal beneficiary’s preference category and are subject to any resulting visa number backlog or per country limit.

As such, it is highly recommended that derivative beneficiaries make every effort to lawfully enter the U.S. to file an Adjustment of Status or make arrangements for an immigrant visa interview at a U.S. Consular as soon as possible should an immigrant visa number become available.

I have already submitted my I-485.  How does this impact me?
If you are the beneficiary of a pending Adjustment of Status (I-485) application and your priority date has retrogressed, the US CIS will hold the application in abeyance until your priority date once again becomes current.  You will continue to remain eligible for employment and travel authorization while the AOS application remains pending with U.S. CIS.

What is the impact on I-140/AOS portability? What if my employer wishes to promote me, relocate me, or change my job?
Section 106(c) of the American Competitiveness in the 21st Century Act (AC 21) created the concept of “AOS portability,” which permits an Adjustment of Status (I-485) applicant whose employment-based AOS application has been pending for at least 180 days to accept new employment that is “the same or similar” to the position specified in the Immigrant Petition (I-140) without invalidating the petition or labor certification.  As long as the new position is in the “same or similar job classification,” changes in location or salary are not relevant factors for purposes of I-140/AOS portability.

The option to pursue I-140/AOS portability remains available, even in a retrogression situation.  However, as discussed above, visa number retrogression and resulting backlogs will delay the processing of an individual’s I-485 application.  During the time the I-485 is pending and until it is approved, US CIS may request the applicant to provide evidence or documentation to show that they have a continuing offer of employment that is in a “same or similar” job classification as the position described in the original Labor Certification or petition.

As such, it is recommended that individuals exercise caution when considering a new position that involves a significant or material change in duties and responsibilities while the I-485 is pending final review and adjudication.  Thus, although portability was intended to ameliorate the impact of long-delayed processing of I-485’s, the ability to successfully port may still be limited depending on the specific circumstances involved.

Should you have any questions, please contact any of the immigration attorneys at Ogletree Deakins or the attorney with whom you normally work.  http://www.visatrax.com


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