Significant Change to Employment Based Green Card Cases – As of today, two separate categories for EB Visa Bulletins, for the filing (Acceptance) of Adjustment of Status cases and one for final Approval of cases
The Obama Administration’s attempts to “streamline” the U.S. employment based green card process appeared to have paid off when the U.S. Department of State recently acknowledged that it was reworking its visa availability system. Today, however, we received a wonderful surprise: as per the U.S. Dept. of State’s Visa Bulletin for October 2015, a significant change in the EB process is apparent: the Visa Bulletin includes two separate employment based categories, each with a different cut off date (see below).
The first category represents the “Approval” category which notes the priority date as to when an Applicant’s Adjustment of Status or IV case would be ultimately approved. The second category represents the “Acceptance” category which control when an Applicant could file for Adjustment of Status, assuming an Applicant’s Priority Date is current at that time.
This is a remarkable and welcome update that conveys significant benefits to EB preference applicants, particularly for Indian and Chinese nationals who were most prejudiced by the long delays arising from retrogressed priority dates.
USCIS should prepare for an avalanche of AOS applications.
A. APPLICATION FINAL ACTION DATES FOR
EMPLOYMENT-BASED PREFERENCE CASES
On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are authorized for issuance to all qualified applicants; and “U” means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date isearlier than the cut-off date listed below.)
|Employment- Based||All Chargeability Areas Except Those Listed||CHINA – mainland born||INDIA||MEXICO||PHILIPPINES|
|Certain Religious Workers||U||U||U||U||U|
*Employment Third Preference Other Workers Category: Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year. This reduction is to be made for as long as necessary to offset adjustments under the NACARA program. Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.
B. DATES FOR FILING OF EMPLOYMENT-BASED
The chart below reflects dates for filing visa applications within a timeframe justifying immediate action in the application process. Applicants for immigrant visas who have a priority date earlier than the cut-off date in the chart may assemble and submit required documents to the Department of State’s National Visa Center, following receipt of notification from the National Visa Center containing detailed instructions. The cut-off date for an oversubscribed category is the priority date of the first applicant who cannot submit documentation to the National Visa Center for an immigrant visa. If a category is designated “current,” all applicants in the relevant category may file, regardless of priority date.
The “C” listing indicates that the category is current, and that applications may be filed regardless of the applicant’s priority date. The listing of a date for any category indicates that only applicants with a priority date which isearlier than the listed date may file their application.
USCIS has determined that this chart may be used (in lieu of the chart in paragraph 5.A.) this month for filing applications for adjustment of status with USCIS. Applicants for adjustment of status may visitwww.USCIS.gov/visabulletininfo for additional information.
and Pilot Programs
6. The Department of State has a recorded message with the cut-off date information for Final Application Action which can be heard at: (202) 485-7699. This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.
We have received approvals on our PERM Reconsideration Requests filed subsequent to an “Agricultural Engineer” Denial
Our office has received approvals for PERM cases previously denied by DOL. DOL had indicated in the denial that using the term “Engineering” in advertising for an IT position was essentially overbroad, and that “the job requirements, as described, must represent the employer’s actual minimum requirements for the job opportunity.” The original DOL denial stated:
“the term “Engineering” implies that a degree in any engineering field would enable an applicant to qualify for the position of Senior Software Developer, when in fact, not all engineering degrees would provide an applicant with the necessary skills to perform the duties of a Senior Software Developer. For example, U.S. workers who have a degree in an engineering field like “Agricultural Engineering” are not likely to have the skills necessary to perform, in an acceptable manner, the duties involved in the Senior Software Developer position. Specifically, the curriculum for a degree in Agricultural Engineering focuses on educating students in the analysis and design of machinery, animal housing, and environmental systems for the production, processing, storage, handling, distribution, and use of food, feed, fiber and other biomaterials, and the management of related natural resources, by integrating basic physical and biological sciences with engineering design principles…Because the employer’s education requirements are so broad, the Certifying Officer is unable to determine if these requirements are normal to the position and/or if they are unduly restrictive. Therefore, the Certifying Officer has concluded that an applicant with any engineering degree would not have the skills necessary to perform the duties of the position in an acceptable manner, and as a result, is unable to determine the employer’s actual minimum requirements for the job opportunity.”
Following our reconsideration request, the DOL has approved/certified our client’s PERM cases.
The Department of Labor has been experiencing technical problems with the PERM system, which still remains unavailable.