VIA Times – September 2014 Issue Vital News, Vibrant VIews for Asian Americans in Chicago & Midwest
By: Robert Gard
Employment Based Third Preference (“EB-3”) Cut-Off- Dates for Philippines Born Beneficiaries of Approved EB-3 I- 140 Petitions Have Advanced 40 Months in the Past 4 Months
WOW!, just WOW!!! The employment based third preference (“EB-3”) cut-off-date for Philippines born beneficiaries of approved I-140 immigrant visa petitions has jumped dramatically in the past four months. Historically, the EB-3 cut-of-dates for the Philippines have lagged far behind the world-wide cut-off-dates for this heavily “oversubscribed” category of immigrant visas (no individual country’s cut-off-date can go beyond or by-pass the worldwide cut-off-date). For many months, the EB-3 world-wide cutoff- date has been April 1, 2011, which meant that nobody in the waiting line for EB-3 immigrant visas born in any country should have been able to secure an EB-3 immigrant visa number unless their priority date (date of filing PERM Application with U.S. Department of Labor or I-140 petition with USCIS, if individual PERM is not required) was before April 1, 2011. For Philippines born EB-3 petition beneficiaries, the backlogs/cut-offdates, were even further back. Since June of 2014, that situation has changed dramatically. Philippines born EB-3 beneficiaries are used to seeing monthly Visa Bulletins with no movement at all or only a few day’s movement in EB-3 cut-off-dates, and they have settled in for what was once anticipated to be a seven to ten year wait for EB-3 immigrant visa availability, after the approval of their I-140 petitions (filed on their behalf by an employer petitioner.) That all changed, starting with the May 2014 Visa Bulletin, resulting in an advance of the EB-3 cut-off-date for Philippines born EB-3 beneficiaries of 40 months over a 4 month period from June – September 2014 Visa Bulletins. The May 2014 EB-3 worldwide cut-off-date was October 1, 2012, and the EB-3 cut-off-date for Philippines born EB-3 beneficiaries was November 1, 2007. The EB-3 dates for beneficiaries born in the Philippines had finally moved past the “bulge” created when all employment based immigrant visa preference categories went “current” in July 2007, and many thousands of EB immigrant visa beneficiaries filed I-485 applications for permanent resident status with the USCIS. USCIS and the Department of State Visa Office tried to immediately close that open window in July 2007, and our law offices were the first out of the gate with a class action law suit against the government that led to a settlement resulting in the window remaining wide open for a short time. Many of those individuals who filed for permanent residency (based on employment based immigrant visa petitions) in July of 2007 are still waiting for immigrant visa number availability. In the June 2014 Visa Bulletin, the world-wide cut-off-date retrogressed from October 1, 2012 (in the May 20014 Visa Bulletin) to April 1, 2011, and it has remained at that April 1, 2011 world-wide EB-3 cut-off date for the Visa Bulletins issued by the Visa Office for the months of June, July, August, and September of 2014. During that time, from June through September 2014, the EB-3 cut-off-date for Philippines born EB-3 visa petition beneficiaries has reflected the following movement: June 2014 Visa Bulletin: January 1, 2008 (moved from 11/1/2007 in the previous month) advanced 2 months July 2014 Visa Bulletin: January 1, 2009 (moved from 1/1/2008 in the previous month) advanced 12 months August 2014 Visa Bulletin: June 1, 2010 (moved from 1/1/2009 in the previous month) advanced 18 months September 2014 Visa Bulletin: April 1, 2011 (moved from 6/1/2010 in the previous month) advanced 8 months to finally match world-wide date. Why did this rapid cut-offdate advance happen, and how long will it last? There are many possible reasons/explanations for why this occurred, many of those explanations involve the manner in which limited numbers of immigrant visas are allocated by law, and how those allocations are used, or are not used. According to the Department of State’s Charlie Oppenheim, who is the DOS’ chief for producing the Visa Bulletin, the Philippine EB-3 date should continue to be consistent with the world-wide (rest of the world) date for at least the next few months. Usage of Philippine EB-1 and EB-2 numbers has decreased, leaving more numbers for Philippine EB-3.
If I am the beneficiary of an approved I-140 employment based immigrant visa petition, what should I be doing?
In short, BE PROACTIVE! Don’t assume that your employment based I-140 petitioner or their legal counsel are going to notify you that your priority date has now been reached. Take an active hands-on role in the processing of your immigration matters, and follow the monthly State Department Visa Office Visa Bulletin, each new issue being released about 15 days before the start of the next month. Know what your priority date is, and for what category of immigrant visa, so that you know what to look for in the Visa Bulletin. Follow the trends of cut-off-date advancement or retrogression in each Visa Bulletin. Learn how the immigrant visa allocation and cut-off-date system works (based on country of birth, not country of citizenship), and have a passing understanding of the concept of “cross-chargeability”, whereby your wait for an immigrant visa may be shorter if your spouse was born in a country with a smaller backlog in your category, even if your spouse is not employed or herself/ himself the beneficiary of an immigrant visa petition. Perhaps most importantly, stay in touch with your I-140 employer/petitioner, particularly if you are residing abroad, or are residing in the U.S. but are not currently employed by that I-140 petitioner, because a “current” priority date and “current” EB-3 immigrant visa availability will do you very little good if the I-140 employer/ petitioner has withdrawn the job offer or I-140 petition, and refuses to issue a current employment offer re-verification letter. You may find yourself unexpectedly needing to start the entire lengthy PERM and I-140 Petition process over again with a new employer/petitioner, though you may be able to retain your existing priority date. If you are in the U.S. waiting for immigrant visa availability, keep track of your authorized stay expiration (and the expiration dates for derivative dependent spouses and children, as they may be different.) Take great care to maintain lawful nonimmigrant status so that you may qualify for adjustment of status in the U.S., and will not need to travel back to your country of birth for immigrant visa processing. Always keep your required paperwork and documentation in a safe and secure location, perhaps advising other family members of your assembled documentation. Review documentation requirements periodically with your legal counsel, as some requirements may change over time and as the State Department Foreign Affairs Manual undergoes changes or amendments. For employment based cases, both USCIS and Consular Posts abroad will generally require a current dated reaffirmation of your I-140 Petitioner’s offer of employment, showing a detailed full-time “permanent” job description & list of job requirements, and the rate of pay & benefits. If you have changed employment or transferred your H- 1B nonimmigrant status to a new/different employer since your PERM/I-140 petition was filed and approved, you will need to assess the viability of securing an employment offer re-verification from your former employer/petitioner. Just because you transferred your H-1B to a new employer does not mean that your I-140 petition has been transferred as well. You may find yourself in the position of having to complete the PERM and I-140 process again with your new employer before being able to secure permanent residency. Again, be proactive, and know your situation and options at all times. Being reactive instead of proactive often results in unnecessary delays and costs.
Quick Notes Could You or Your Spouse Pass a USCIS Interview on the “Bona Fides” of Your Marriage?
The website “BUZZFEED” has published an interesting quiz: Could You and Your Partner Pass A U.S. Immigration Marriage Interview? http://lawprofessors. typepad.com/immigration/ 2014/08/buzzfeed-could-youand- your-partner-pass-a-us-immigration- marriage-interview.html.Take the test and see how well you score. Could Political Considerations Convince President Obama to Delay Taking Executive Action on Immigration Reform Until After the November 2014 Mid-Term Elections? In June, President Obama vowed to take unilateral action on a wide variety of immigration reform issues, expressing exasperation at a Republican lead House of Representative who have obstructed every effort to pass popular and necessary comprehensive immigration reform legislation. This Administration has been studying various actions that could be taken in the immigration reform area for more than four years, and many proposals have already been thoroughly vetted by both the Department of Justice and Department of Homeland Security. The President had been expected to make his announcement of his executive actions at the end of August or early September, but some Democratic candidates in traditionally “red” states or congressional districts have asked the President to refrain from making any controversial executive changes or even announcement of proposed actions until after the early November midterm elections. President Obama himself hinted that he intends to be flexible on the timing of his executive action announcements. On Thursday, August 28th, President Obama stated: “Some of these things do affect timelines, and we’re just going to be working through as systematically as possible in order to get this done,” Mr. Obama said. “But have no doubt, in the absence of congressional action, I’m going to do what I can to make sure the system works better.” There is certainly a great deal of pushing and pulling and political arm twisting going on across the political spectrum, but we may need to wait another few months to see how this plays out. Stay tuned! COPYRIGHT BY AUTHOR — 2014
This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It is published and distributed with the understanding that the publisher is not engaged in rendering legal, accounting or other professional service. It is submitted for publication by the author with the understanding that each individual case is different, and this article is not a formal legal opinion and should not be relied upon as advice by the author in a particular legal situation. Mr. Gard has been engaged in the practice of immigration law since 1977. He is a frequent writer and lecturer in the American Immigration Lawyers Association and has served that professional organization as a Chapter Chair of the Greater Chicago Chapter, and as a Director. Written questions may be submitted to Mr. Gard. At his discretion, selected questions or issues may be addressed in subsequent articles. Mr. Gard is available for appointments for consultation in immigration law-related matters at the law offices of Immigration Attorneys, LLP, 203 North LaSalle Street, Suite# 1550, Chicago, Illinois 60601, Contact Information (email is the preferred method of contact): e-mail: rgard@immattyllp.com Telephone: (312) 661-9100 ext. 8943; FAX: (312) 661-9021; Our firm has several multi-lingual lawyers engaged in the practice of immigration law, and also has lawyers available for criminal and civil litigation and health care facility/ medical practice and licensing issues. The firm also has offices in Milwaukee (WI), Tampa (FL), and Phoenix (AZ).
