Grim News for Employment-Based Immigrants

By REUBEN S. SEGURITAN

The wait time for employment-based applicants to obtain a visa number will be much longer in the coming months and in future years, according to Charles Oppenheim of the U.S. Department of State Visa Office.

The grim prediction is based on a recent analysis by the Visa Office of the United States Citizenship and Immigration Services (USCIS) processing during the first seven and a half (7 ½) months of the current fiscal year and the changes to the processing patterns. Mr. Oppenheim also estimates that all of the 140,000 employment-based visa numbers allocated for this fiscal year will be used by September 30, 2009.

tens of thousands of I-485 applications with priority dates in 2004 and earlier.

At that time, visa numbers for the other employment categories remained available except for China and India whose second preference (EB-2) showed a cut-off date of February 15, 2005 and February 15, 2004, respectively.

But there has been a strong surge in the demand for other preferences, Mr. Oppenheim said. The 4th preference (EB-4) which refers to religious workers and other special immigrants may experience retrogression later this year as a result.

There has also been a heavy increase in applications for the employment-based 5th preference (EB-5) for immigrant investors and for the employment-based first preference (EB-1) for outstanding professors and researchers, multinational executives and managers and persons of extraordinary ability.

The EB-1 for India may require the establishment of a cut off date in August or September this year.

The surge in the EB-4 and EB-5 is significant because unused visa numbers in these categories are given to the EB-2 and EB-3 categories. With these categories using all their allotted numbers, the retrogression of the EB-2 and EB-3 will get worse.

The applicants from India and China will have the longest wait. The EB-2 cut-off date for July 2009 is January 1, 2000, but it may become unavailable this August or September. At the start of the 2010 fiscal year (10/01/2009), India’s cut-off date for EB-3 will be November 1, 2001 while China’s cut-off date will be March 1, 2005.

The Visa office estimates that on October 1, 2009, which is the start of the 2010 fiscal year, the EB-3 category will have the following cut-off dates: China – March 1, 2003; India – November 1, 2001; Mexico – March 1, 2003; other countries – March 1, 2003.

Without immigration reforms, the waiting time for the EB-3 applicants will probably be over a decade.

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years and is included in the Marquis Who’s Who in American Law. A former law editor, he previously taught law and international politics and is the author of “We Didn’t Pass Through the Golden Door.” He frequently writes and speaks on immigration and other legal topics. He has received numerous awards in the U.S. and abroad, including several outstanding professional awards and Philippine Presidential awards. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)

Posted by admin on June 20th, 2009 with no comments.
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2nd Preference Option for Professionals

By REUBEN S. SEGURITAN

With the unavailability of visa numbers in the employment-based third preference (EB3) category, which means a wait for green card of about seven years, a viable option for qualified professionals from all countries, except India and China, is the second preference (EB2) category.

The EB2 category has a yearly worldwide allocation of 40,000 visa numbers, plus any unused visas in the first preference category. Visa numbers are currently available for all countries for this category, except China and India.

requirements must be satisfied: first, the alien beneficiary must be a member of the professions holding an advanced degree or its foreign equivalent; and second, the position must require, at a minimum, an advanced degree.

The advanced degree requirement is satisfied if the beneficiary has a U.S. master’s degree or higher, or a foreign degree evaluated to be the equivalent of a U.S. master’s degree or higher. Lawyers and medical doctors may qualify as advanced degree professionals.For those without a master’s degree, they may prove eligibility under the EB2 category, if they have a combination of a bachelor’s degree plus five years of progressive experience in the profession.

This is considered by the U.S. Citizenship and Immigration Services (USCIS) as having the equivalency of a master’s degree.

A bachelor’s degree is a threshold requirement. Work experience cannot be considered in evaluating attainment of a bachelor’s degree. Moreover, the USCIS would consider one foreign degree equivalent and not a combination of degrees or a combination of education or experience to equate to a bachelor’s degree for professional positions.

“Progressive experience” is not defined by statute or regulation. The USCIS memo issued in 2000 interpreted it as, “employment experience that reveals progress, moves forward, and advances toward increasingly complex and responsible duties demonstrating advancing levels of responsibility and knowledge in the specialty.”

For those under the EB-2 sub-group of Exceptional Ability Workers, they need to show a degree of expertise in their field that is “significantly above the ordinary”. This is proven by any three of the following: degree relating to an area of exceptional ability, letter/s from current or former employer/s showing at least 10 years experience; license to practice profession; a salary or remuneration history demonstrating exceptional ability; membership in professional association; or recognition of achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organization.

Prior to applying for the EB-2 immigrant visa, a labor certification is required, but this requirement may be waived if the employment of the applicant will be in the national interest. To support a national interest waiver, the employer or the applicant may submit with the ETA 9089 form documents to show that the benefit to be provided by the alien will be national in scope, such as the improvement of the U.S. economy, improvement of wages and working conditions for U.S. workers, improvement of education and programs for U.S. children, improvement of health care and environment.

In one of our cases, we were able to obtain a national interest waiver for our physician client upon showing that he would be practicing in an underserved area.

Posted by admin on June 17th, 2009 with no comments.
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