Reuben S. Seguritan

Employment-based Priority Dates Continue to Advance

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The August 2014 Visa Bulletin shows that the Philippine employment-based third preference (EB-3) cut-off date will jump by seventeen weeks from January 1, 2009 to June 1, 2010.

 

China will advance by over two years to November 1, 2008 and India will move by over one week. The third preference cut-off date for all other countries will remain at April 1, 2011.

The employment-based second preference (EB-2) will remain current for all countries except China and India. China’s second preference cut-off date will move by over three months to October 8, 2009 while India’s cut-off date will move by more than four months to January 22, 2009. All the other employment preferences will remain current for all countries.

The family-based preferences (F-1 to F-4) will move slowly. The worldwide preference cut-off dates are as follows: F-1 – April 22, 2007; F-2A – May 1, 2012; F-2B – July 1, 2007; F-3 – November 15, 2003 and F-4 – January 1, 2002.

The Philippines cut-off dates are: F-1 – June 1, 2004 (advance by 17 months); F-2A – May 1, 2012; F-2B – October 8, 2003; F-3 – April 15, 1993 and F-4 – January 22, 1991.

The Immigration and Nationality Act (INA) sets the number of immigrant visas that may be issued under certain preference categories. The cut-off dates in the Visa Bulletin are established to ensure that that the immigrant visas issued each year do not go beyond the limit established in the INA.

If an applicant’s priority date is before the cut-off date stated in the monthly visa bulletin, a visa number is immediately available. If the priority date comes on or after the cut-off date, the applicant needs to wait until the priority date becomes current.

Because of the long wait period, beneficiaries of employment-based preference petitions, such as foreign nurses sponsored under the EB-3 category whose priority dates are before June 1, 2010 may be required to update their documents such as their visa screen certificate and professional license, among others.

Also, the USCIS has recently required adjustment applicants to submit a new Form I-693 (Report of Medical Examination and Vaccination Record). Since about 2004, the USCIS has extended the validity of the civil surgeon’s endorsement on Form I-693 until the adjudication of the adjustment of status application but effective last June 1, Forms I-693 which are more than one year old were no longer valid.

Beneficiaries of employment-based and family-based preferences who have priority dates earlier than the aforementioned cut-off dates and who are outside the United States will have to apply for an immigrant visa at a consular post abroad. Those who are currently living in the U.S. may apply for adjustment of status.

Those with pending adjustment of status application will be allowed to remain and work in the U.S. while their adjustment application is being adjudicated. Beneficiaries of employment-based preference petition whose adjustment of status has been pending for 180 days or longer may transfer to another employer pursuant to the portability rule subject to certain eligibility requirements.

The portability rule under the American Competitiveness in the Twenty-First Century Act of October 2000 (AC21) allows an adjustment applicant to change employers if the new job is in the same or similar occupational classification, the Form I-140 has been approved or is approvable when concurrently filed with the adjustment application and the I-485 application has been pending for 180 or more.

The 180-day period starts from the date the I-485 application was received by the USICS as indicated in the USCIS receipt notice. If the adjustment applicant meets all the requirements, he may change employers under AC21. It is however advisable for the adjustment applicant to notify the USCIS after he starts his new employment in order to avoid Requests for Evidence or Notice of Intent to Deny from the USCIS.

 

 

(Editor’s Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For more information, you may log on to his website at www.seguritan.com or call (212) 695-5281.)

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