By Attorneys Robert L. Reeves and Joseph I. Elias
The June 2007 visa bulletin just issued by the Department of State shows a significant change in the availability of employment-based visa numbers. Specifically, the Employment Based-3rd preference (EB3) category jumped forward for most countries from August 1, 2003 to June 1, 2005. The “Other Workers” category went from being completely unavailable to October 1, 2001.
The EB3 category is one of the broadest categories that includes accountants, bookkeepers, chefs, carpenters, financial analysts, management analysts, programmers, software engineers, registered nurses, physical therapists, etc. This category is defined as one that requires the minimum of two years of post high-school education, specialized training or qualifying experience to be eligible for this category, but not more than a bachelor’s degree and five years of experience. “Other Workers” are occupations that require less than two years of education, training or experience such as caregivers, certified nursing assistants, child monitors and housekeepers.
Starting on June 1, 2007, a foreign worker in the US in the EB3 category with an approved labor certification filed before June 1, 2005, may apply for adjustment to permanent resident status. Filing for permanent residency entitles foreign workers and their dependents to work authorization within three months of filing. Many applicants will also be qualified for an advance parole travel document allowing for multiple re-entries into the US while their adjustment is pending. Qualification for travel documents is a complex process requiring an analysis of unlawful presence and the 3 and 10-year bars that needs an evaluation by an experienced immigration lawyer.
The Department of Labor’s Backlog Elimination Centers (BECs) are now completing the processing of most pre-2005 labor certification (LC) applications. R&A is receiving a substantial increase of approvals from the BECs. Starting on June 1, LC beneficiaries in the EB-3 category may concurrently process their immigrant visa petitions and adjustment of status applications. The “Other Workers” LC recipients that have been waiting since 2001 or earlier may also file for permanent residency.
EB-3 foreign workers outside of the U.S. with approved LCs may also begin consular processing in June if they have a priority date earlier than June 1, 2005. It may be advisable for LC holders with a current priority date to file their immigrant visa petitions under the USCIS’s expedited processing to ensure an approval within 15 days. Once the USCIS approves the case, the National Visa Center can then begin scheduling interviews at a foreign consulate.
Applications should be filed as quickly as possible because visa numbers may retrogress in upcoming months. Retrogression is not uncommon and it may result in several months or even years of delay before an adjustment application can be filed again.
If visa numbers retrogress, the USCIS cannot grant permanent resident status. It does however, keep the case on hold and the USCIS will continue to renew work authorization and, in some qualifying cases, travel authorization. This means the foreign worker and family members will be able to continue working without interruption while they wait for a visa number to become available.