Non-Immigrant Options & Navigating Permanent Residence

Monday November, 15th 2010

George Mason University

Johnson Center, Room D

 Save your seat!

TVISA & UVISA APPLICATIONS

DATE:                11-19-2010

TIME:                 9AM-12 PM

RICHMOND, VA 23220

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 COURSE TOPIC

Because seating is LIMITED, please RSVP attendance to Tony Pham at Tony.Pham@richmondgov.com or (804) 646-0229 no later than November 12, 2010.

 FREE TRAINING

APPROVED FOR 3 DCJS CREDIT HOURS.  (2 CULTURAL DIVERSITY AND 1 LEGAL)

 P.I.C. III FORMS SHALL BE PROVIDED AT THE CONCLUSION OF CLASS

Time may be running out to file new H-1Bs this year! As of October 22, 2010, approximately 44,300 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 16,200 H-1B petitions for aliens with advanced degrees. Contact Challa Law now to finalize your cap-subject H-1B filings.

Remember, the fees will increase as of November 23rd! Please also keep in mind that we must file a certified LCA with the H-1B petition. The LCA takes a minimum of 7 days to be processed by USCIS. Therefore it is critical that you initiate all H-1B cases immediately to avoid the risk of USCIS running out of new H-1Bs before yours is filed.

There are a number of paths to obtaining permanent residence. The most common employment based process for obtaining permanent residence is labor certification, typically referred to as the PERM process. One of the most confusing issues facing applicants is whether they can file the PERM application under the EB2 or EB3 classification?

First, what is EB2 or EB3?

The Department of State classifies employment petitions based on job qualifications; these classifications are called preference categories.

An EB-2 petition is an employment-based second preference petition. A person filing a petition in this category must have a master's degree or its equivalent and the position must require a master's degree as a minimum qualification for the job. In some instances, a professional with a bachelor's degree and five years of progressively responsible experience may be considered to possess the equivalent of a master's degree in the field, provided that person has a base four year degree.

An EB-3 petition is an employment-based 3rd preference petition for a position that requires a bachelor's degree or at least two years of experience (skilled worker category, which does not require a degree). 

As discussed in greater detail below, since the EB-2 is the more desirable classification, our article will focus on its eligibility.

DEFINITIONS

Master's degree equivalence

At minimum the foreign national must possess a four year degree. In other words, EB 2 eligibility cannot be met by a person with a three year bachelor's degree and 5 years of progressive experience. In certain instances, the three year bachelor's degree can be coupled with an additional diploma or degree course to demonstrate four year degree equivalence. However, work experience cannot be used lieu of academic education to demonstrate equivalence of a four year degree. 

Five years of progressive experience

If you have an underlying bachelor's degree, then you need to demonstrate that have obtained five years of experience in progressively responsible positions. You need to submit experience letters that show that you have advanced in your given profession.

Position must require a master's degree

Even if you have a master's degree, you cannot file for an EB-2 classification unless the position normally requires a bachelor's degree. For example, a person with a master's degree cannot qualify for an EB-2 petition to flip hamburgers at McDonald's. Flipping hamburgers does not require a master's degree.

The Department of Labor outlines education and experience requirements for all occupations through a very specific zoning process, the OES Job Zone. The PERM regulations provide that if a position requires qualifications that are greater than those defined in the OES Job Zone level, the PERM application may be challenged and the employer may be required to provide a business necessity justification that may or may not be accepted by the DOL. 

Why is the EB-2 or EB-3 classification significant?

The immigrant visa numbers for the EB-3 category frequently retrogress or otherwise become unavailable for those born in China, India, and the Philippines. Each country has an annual quota of assigned immigrant visa numbers for each employment-based category.  If the visa number for one country is oversubscribed in one category, those visa numbers will retrogress or become unavailable to beneficiaries born in those countries. 

In other words, even if the PERM application and immigrant petition (Form I-140) are approved, and the visa number is not available to the foreign national beneficiary, the foreign national will NOT be eligible to file for adjustment of status or consular processing to obtain lawful permanent residence.

Sometimes, the EB-2 visa numbers retrogress as well.  During some periods of the year, the immigrant visa numbers may become totally unavailable due to over subscription.  For immigrant visa number availability, please check Visa Bulletins posted on Department of State's website at http://www.travel.state.gov/visa/bulletin/bulletin_1360.html  

Generally, if there is any backlog, the EB-2 category usually has a shorter waiting period than the EB-3 category.  If the visa numbers are not current for the category according to alien's priority date, the alien has to wait until it becomes current before being eligible to file an application for adjustment of status (Form I-485) or complete consular processing in order to become a lawful permanent resident.  Therefore, it is a major concern whether an alien should file under the EB-2 or Eb-3 category since such a decision will determine whether visa numbers are current available.