By: Attorneys Robert L. Reeves and Elsie Hui Arias

According to the State Department’s visa bulletin for October 2005, certain employment immigrant visa categories will experience severe retrogression in visas available. The employment-based third-preference (EB-3) category is especially bleak, as immigrant workers from all countries face at least a four-year backlog. Beginning next month, the State Department will only issue visas to Filipinos in the EB-3 skilled worker category with priority dates of March 1, 2001 or earlier, and to Filipinos in the EB-3 unskilled worker category with priority dates of October 1, 2000 or earlier. Fortunately, visas for EB-3 workers in a “Schedule A” occupation (registered nurses and physical therapists) are still current, and those individuals are eligible to immigrate to the U.S. in the immediate future.

As we have discussed in previous articles, the U.S. immigration system is comprised of several employment- and family-based visa categories. The U.S. does not have unlimited immigration, and Congress has determined that only a certain number of foreign nationals from each category can immigrate to the United States each fiscal year. Immigrant visas for these categories are issued when they become available according to their “priority date.” Generally speaking, the filing date of the visa petition determines the priority date of the alien beneficiary, and his or her place on the waiting list for an immigrant visa. The exception is with immigrant workers being sponsored for labor certifications; their priority date is the date the labor certification is filed with the Department of Labor. Most workers sponsored for labor certifications fall in the EB-3 category.

This change in visa availability is unfortunate and disheartening, especially since in the last three years (June 2001 to December 2004), immigrant visas for all employment-based petitions were available for nationals of all countries. Ironically, the retrogression in the EB-3 category for all nationals (and EB-1/EB-2 categories for Chinese and Indian nationals) is attributable to the U.S. Citizenship and Immigration Services’ (USCIS) successful effort in eliminating its substantial backlog of employment-based adjustment of status applications. The prospect of becoming a permanent resident sooner through the expedited PERM labor certification program has diminished for EB-3 workers, as they now have to wait four to five years before their immigrant visa is available according to their priority date. Filipino nationals with advanced degrees will fare better if they can immigrate under the EB-2 category, which remains current for now.

The process of obtaining permanent residency through an employer is dynamic and complex. Employers and individuals seeking assistance with employment-based immigration should consult with a knowledgeable and experienced immigration attorney.