The Chicago immigration lawyers of Zneimer & Zneimer handle employment-based immigration and are very familiar with the lengthy priority date line. Many Indian and Chinese people who contribute to the economic engine of our country with knowledge, creativity, and skills, have been stuck for years in an invisible visa line that barely moves forward. These neighbors and friends among us do their job and pay their taxes, but they never stop worrying if their sponsored job will last until the end of the visa line, if a whimsical regulation will deny them H-1B extension and make them out of status, if by the time they reach the end of the line, their minor kids will age out unable to become permanent residents. Many people turn down a well-deserved promotion because it is not the sponsored job, and they need to keep the job with the same title, same description, same company, and work address, until they can file for the last step of the process, adjustment of status.
Priority date. The law presumes that when an employer offers a permanent position to a noncitizen, the employer displaces a U.S. worker. To sponsor a foreign worker, the employer therefore must test the U.S. market for U.S. workers, and only if there are no U.S. workers who are willing, able, qualified, and available to fill the job, the employer can receive a labor certification from the Department of Labor, and then file an immigrant petition on behalf of the foreign worker. In some cases, where the work is in the national interest, the USCIS can waive the test of the U.S. market. Once a petition is filed and approved, the foreign worker receives a “priority date”, which is the date in the Visa Bulletin that shows when a worker can receive his or her green card. The “priority date” is like a number, that places the noncitizen in the visa line, and will be called when the visa becomes available. For people born in India and China, this number is distant and the line is a decade-wait long.
These are legal immigrants, in jobs that U.S. workers were not willing, able, qualified, or available to take, but employers and our economy needed to be filled. They may be doctors in rural and medically underserved areas, software engineers with unique skills, cancer researchers, radiation oncology physicists, and others. All have Bachelor or higher degrees. Due to the per country quota, a janitor born in another country does not have to wait for an immigrant visa, while a Nobel Prize winner from India must wait at least 2.5 years. Immigrants from India with Master Degree, M.D., Ph.D., even when the USCIS has found that their employment is in the national interest, must wait to receive an immigrant visa, or green card, for many years.
Visa Bulletin. That is why, when the State Department published the Visa Bulletin for October 2020, it created a stir. Visas that could not be used due to the pandemic for consular processing, were released for people waiting on the employment line, moving the priority date forward. The category for EB-3 (skilled workers and workers with Bachelor Degrees) moved faster than the category for EB-2 (advanced degrees or petitions in national interest).
USCIS Filing Date. Then USCIS caused even bigger stir when in the “Next Month’s Adjustment of Status Filing Charts” it announced that it will accept adjustment of status applications for employment-based immigrant on an earlier “filing date” before the “final action date” (priority date) becomes current.
Dates of Filing
Final Action Dates
Dates of Filing
Final Action Date
EB-2 vs. EB-3. This faster EB-3 movement caused many people in the EB-2 category to question whether they can “downgrade” their category so that they can apply for adjustment of status as soon as possible. The difference is significant. The date of filing for India for EB-2 category is for applicants with priority date prior to May 15, 2011, while for EB-3, the priority date is prior to January 1, 2015, which is almost a 4 year longer wait. For China, the difference is about 2 years.
The question many people who are waiting in the EB-2 line is whether they can have their petition downgraded, and whether they should get their petition downgraded.
Unless the people have EB-2 that is predicated on a petition in the national interest, which cannot be downgraded, the answer is yes, they can have their petitions downgraded. However, the petition is an act by the employer, and it is the employer’s decision whether to spend the money to file an amended petition in a different employment category.
Because the EB-3 petition will be predicated on the labor certification that was filed in support of the EB-2 petition, the downgraded EB-3 petition will likely cancel the EB-2 petition if the downgraded petition is filed as an amended petition. In other words, the foreign worker will not be able to keep the EB-2 petition if both are predicated on the same labor certification, and the downgrade was filed as an amended petition. There is an argument that if the downgrade is filed as a new petition, rather than an amendment petition, and is submitted with all support documents, except of the original certified labor certification, both the original EB-2 and the EB-3 may be used to adjust status. However, it is not entirely clear whether the USCIS will consider the EB-2 invalid if an EB-3 petition is filed for the same labor certification.
Does it make sense to change to EB-3 from EB-2? It does if the priority date is current for EB-3 but not for EB-2. In addition, having an adjustment of status pending for 180 days provides more flexibility, allows the primary applicant and his or her family members to receive work and travel permits, and in a way, gives a peace of mind. However, if many people switch from EB-2 to EB-3, and since more people have Bachelor Degrees than Master or higher degrees, it is likely that the EB-3 category may become more backlogged than the EB-2, prompting the former EB-2 applicants to ask their employers to switch them back to EB-2 if the USCIS rejects the multiple petitions tied to the same labor certification without another amendment. Remember also that because the downgraded EB-3 petition will be filed based on already filed labor certification, the amended EB-3 petition cannot be filed with premium processing, which will cause delays. Regardless of the category, the noncitizen worker will keep his or her priority date.
Forms. The adjustment of status includes a number of forms and people who have not filed the I-140 and I-485 as one stop, will need to submit Form I-485J for the primary applicant. In addition, the new public charge rules also require Form I-944 Declaration of Self-Sufficiency for the primary applicant and all derivatives. The forms are very document intensive, and therefore contact your attorneys as soon as possible to start gathering the required documents.
Aging-out children and “Filing Date.” One important point to remember is that filing of adjustment of status on the earlier “filing date” will not necessarily protect all children from aging out because when the priority date becomes current (“final action date”), a child may have aged out even under the Child Status Protection Act. If you have children that may age out, you must make sure that they change status to F-1 to be able to remain in the U.S. Otherwise, the children’s adjustment will be denied and they may become out of status.
So, to EB-3 or not to EB-3? This has to be decided on a case by case basis, and people who cannot file under “date of filing” in either category should probably wait.
If you have any questions, contact the Chicago immigration attorneys of Zneimer & Zneimer. We represent many employment-based petitioners and people who are going through the adjustment of status process.