Many foreign professionals waiting for employer-sponsored permanent residence will have reason to cheer in December, when the State Department advances the green card queue by more than one year for those in professional positions requiring at least a bachelor’s degree. But Chinese nationals with advanced degrees or exceptional ability in science, business or the arts, along with their sponsoring employers, face an interesting dilemma concerning how to proceed with their green card applications. In a rare occurrence on the immigration landscape, beginning in December 2013, green cards will be available to this category of professional rather than to Chinese nationals who possess bachelor’s degrees only.
The current U.S. immigration system limits the number of employment-based (EB) immigrant visas to roughly 140,000 each fiscal year. The quota (which includes all family members) is divided among five preference categories, each of which corresponds to a specific type of employment and skill level. The most frequently used of these are the EB-1 category for foreign nationals of extraordinary ability, the EB-2 category for advanced-degree professionals and the EB-3 category for professionals and skilled workers, with two other less sought-after categories devoted to foreign investors and certain religious workers. Immigrant visa allocation is capped at seven percent of the worldwide total for each country.
For most EB-2 and all EB-3 foreign nationals, the employment-based permanent residence process begins with the filing of a labor certification application with the Department of Labor. In order for a foreign national’s green card case to proceed, DOL must certify that there are no qualified U.S. workers available to fill the position. It is the filing of the labor certification that secures the EB-2 or EB-3 foreign national’s place in the green card queue; the date of filing is known as a priority date. Once the labor certification is approved, the employer files a Form I-140 petition for alien worker with U.S. Citizenship and Immigration Services. But the final step in the process – the formal application for adjustment of status to permanent residence or an application for an immigrant visa at a U.S. consulate abroad – can only be taken when an immigrant visa actually becomes available to the foreign national.
The availability of green cards is regulated by the U.S. State Department. Each month, State issues the Visa Bulletin, its forecast of immigrant availability for the coming month. The Visa Bulletin lists a “cut-off date” for each immigrant visa and country of nationality. A foreign national whose priority date is earlier than the cut-off date for a particular category is eligible to apply for adjustment of status or for an immigrant visa.
Cut-off dates move forward or backward based on the anticipated demand for each category and country. A category and country are listed as “current” if there is no immigrant visa backlog. Where immigrant visa demand exceeds supply, a category and country are considered “oversubscribed” and the State Department establishes a cutoff for immigrant visas based on foreign national priority dates. Where the number of applications submitted for visa processing or adjustment of status exceeds a category’s monthly immigrant visa allocation, a category is “unavailable.” “Retrogression” occurs when immigrant visa availability for a particular preference category or country is exceeded by the number of qualifying foreign nationals applying for an immigrant visa, prompting the State Department to adjust Visa Bulletin priority dates to an earlier point in time (hence “retrogression) than previously indicated.
Because the number of employer-sponsored foreign nationals exceeds the number of immigrant visas available for most preference categories and countries, backlogs have developed in the most heavily subscribed categories. Foreign advanced-degree professionals (EB-2), professionals and skilled workers (EB-3) from India and China are subject to the lengthiest backlogs.
Because unused immigrant visa numbers cannot be carried over into the following fiscal year, the State Department tries to ensure that no immigrant visas are wasted. In recent months, the State Department has aggressively advanced the priority date cut-off in the EB-3 category for most countries. The reason? Less demand than anticipated, due to many foreign nationals originally classified as EB-3s “upgrading” to EB-2 based on advancement in their careers. This is good news for the remaining EB-3s in the green card queue. In December, the cut-off date for most foreign nationals in EB-3 will move ahead by one year, to October 1, 2011 – meaning that the green card waiting period will shorten considerably for many.
For Chinese advanced-degree professionals in EB-2, however, the story is different. Though EB-2 is “current” for most nationalities, Chinese (and Indian) nationals have been subject to lengthy backlogs for many years. Still, these backlogs, until recently, had not been as severe as those for the EB-3 classification. But in the last several months, there has been a rare occurrence: immigrant visas have become more readily available in EB-3 than in EB-2 for China. This presents some interesting questions for EB-2 Chinese nationals, their employers and their immigration counsel. Can a foreign national with an approved EB-2 – i.e., someone who is a professional with an advanced degree or possesses exceptional ability in the sciences, arts or business – be eligible for a green card in the EB-3 category, which requires only a bachelor’s degree?
The answer in some cases will be yes. But there are many caveats, requiring employers, foreign nationals and their immigration counsel to weigh the risks against the benefits of pursuing permanent residence in the lower category. To take advantage of greater immigrant visa availability in EB-3, the sponsoring employer would need to file a new immigrant worker petition to establish the foreign national’s eligibility in the lower category. But the window within which to do so could be short. If demand for EB-3 increases suddenly, the effort and expense of filing the new petition might be lost if by the time of approval of the EB-3, immigrant visas for the EB-3 category are no longer available. Still, for many, the benefits of faster permanent residence are so compelling that it may be well worth pursuing a second immigration filing.
Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at firstname.lastname@example.org. Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.