Myth About “Other Worker” Green Card

Apparently, some attorneys have been filing green cards for “other workers” and telling their clients they will have green cards in two years. This is a myth. “Other workers” will be waiting for at least ten years, and probably much longer, according to current statistics from the INS.

My readers should be more or less familiar with the employment-based preference system for the allocation of immigrant visa petitions for either immigration or adjustment of status to that of a permanent resident. For most jobs, the employer must file a “labor certification” application with the State employment agency, describing the job offered, and the skills the alien possesses which make that alien qualified for the job. The date of filing is the alien’s priority date, which will ultimately determine when a visa is available. The employer then advertises the position, and must establish that there were no qualified, able and willing American workers interested in the job. The application is forwarded to the United States Department of labor following the recruitment, and if the DOL determines the recruitment was conducted fairly, and there are no American workers meeting the above criteria, the alien will be certified, and accorded a visa when his priority date is current.

Most people fall into one of two categories within the third preference: either the skilled/professional worker category, or the other worker category. To fall within the skilled/professional category, the job must require at least two years experience or a four year college degree, according to DOL guidelines. The “other worker” category encompasses all jobs requiring less education or experience. Generally, most jobs involving manual labor, home health care, child care, and other lesser skilled jobs will fall into the other worker category.

Like the professional/skilled category, a labor certification application must be filed for these jobs, and will also take approximately two years to complete. However, once the labor certification application is approved, and a subsequent visa petition based on the labor certification is approved, the alien must wait until his priority date is current before he may filed for the “green card”. In the case of a skilled/professional worker, this waiting does not pose any significant difficulty. For some countries, visas are now available (as of August , 1996) for those aliens with priority dates up to and including July 1, 1995. In fact, that category moved from February 1, 1995 to July 1, 1995 between July and August, 1996.

The “other workers” category, however, presents a far gloomier picture. First, visas are currently “unavailable” for the entire category for all countries. This means that no adjustment of status applications will be accepted based on any “other worker” petitions. The State Department, which controls visa availability, has made no promises as to when visas may be available again.

But will these visas ever available? The answer is “yes”, but only if your labor certification was filed some time in the middle 1980’s. The reason is that the other workers category is so over-subscribed, that the “current” processing dates are moving further and further into the past. For instance, between September 1995 and April 1996, visas were available for priority dates up to and including March 1, 1991. However, in May and June 1996, visas became unavailable. Then, in July, 1996, a remarkable movement took place: visas became available again, but only for those priority dates up to and including May 8, 1987!

You may ask how this could happen. Basically, it makes no sense that visas could have been available, and then are not. Nonetheless, the visa preference system has seen this type of retrogression in the past, particularly in family preference categories for some countries. The numbers move backwards, because the category is overwhelmed. Therefore, if anyone filed an :other worker preference labor certification application within the past five years, they will be waiting somewhere between twenty and one hundred years before they could even file for a green card!

I am not imparting this information to my readers in order to frighten them, and in fact, no one enjoys being the bearer of bad news. However, recently many referrals have come to my office stating that their lawyer told them he would get them a green card through the labor certification he filed in two years. I ask them what the position is, and they tell me “care giver”, or nanny. I am appalled by this total miscommunication between lawyer and client. Either the client misunderstood that the lawyer told him only that the labor certification would be approved in two years, or the lawyer failed to inform the client regarding the preference system and the retrogression of the “other worker” category. In either case, the person who will be harmed is the client.

What can you do if you are involved in an “other worker” labor certification? First, find out what your priority date is from your lawyer. Then, ask him when you will be eligible to receive a green card, based on that labor certification. If you filed it within the last two years, it is not even worth pursuing. But do not be alarmed. There are many other methods through which a competent attorney can assist you in legalizing your status, even if you are not experienced in a “skilled” job. Most importantly. Do not wait until you have paid an attorney several thousand dollars and waited several years chasing the myth of an “other workers” labor certification before you explore other possibilities: Your time is far too precious.