EB3 Priority Date: What You Need to Know

Overview:

1. What is the EB3 Visa?
2. What is a Priority Date?
3. I-140s
4. Checking Your Priority Date: Visa Bulletin
5. Changing Categories
6. Predictions for Priority Dates

 

What is the EB3 Visa?

 

An EB3 visa is an employment-based visa for professionals, skilled workers, and unskilled workers. To qualify, you must have a permanent job where there are no qualified American workers who could perform the job. Professionals are required to have at least a bachelor’s degree. Experience cannot be used to replace a bachelor’s degree (Ex. experience evaluations). Skilled workers must have at least two years of experience or job training. Unskilled workers are those who have less than two years of experience and job training. 

 

Expect Longer Wait Times

 

Compared to the other types of employment-based visas, EB3 requirements are more relaxed. This, however, makes for longer wait times to get a green card in this category because more people qualify for it. Individuals from countries like India and China can expect wait times for over 10 years while others can expect wait times around 3 years.

 

What is a Priority Date?

 

A priority date is your place in line to get a green card and it depends on your country and  category type. Priority dates are given for EB3s after filing a PERM labor certification. This should not be confused with a labor certification application for H-1Bs. The process is entirely different. The PERM process is the first step to receiving your green card via the EB3 process and is initiated by your employer.

 

The Process

 

The PERM labor certification is a process in place to protect both American workers and immigrant workers. It ensures that there are no qualified American workers who can do the job and ensures that the immigrant worker is fairly paid for the job compared to American workers who are in similar job positions.

 

This process will mostly be done with your employer and your attorney. A detailed guide to the entire process is available here. Your employer and your attorney will confirm your job description, complete your prevailing wage information, and certify in a recruiting process that there are no qualified American workers for the job. Once the recruiting process is completed and all the requirements are met, your attorney will file Form ETA-9089, which is the application for the PERM labor certification. The date that the PERM labor certification is filed and received by the U.S Department of Labor is your priority date.

 

I-140

 

Once the PERM labor certification is filed and approved, it should be included to complete your I-140. This is the last step of the PERM process. The entire PERM process can take up to a year, though most will be completed before 8 months. Here are the current processing times for PERMs. The process can be slowed or expedited depending on various factors, like audits and premium processing. At any point of the PERM process, after filing the ETA-9089 form, you can check the status of the PERM by contacting the USCIS service center or dropbox where your petition was filed. If you have a receipt, you may use the receipt number to check on the status of the application through the USCIS Case Status tool.

 

Importance of I-140s

 

If you are in H-1B status, your I-140 is required to renew your H-1B status after 6 years in H-1B, or if you are trying to renew beyond the 6 years. This is particularly important to foreign nationals who are Indian or Chinese, as their waiting times to reach their priority dates are extremely long. 

 

Ownership of I-140s

 

Immigrants must remember that they do not have ownership of the I-140. An employer can revoke the I-140 by choosing to withdraw the petition. USCIS will immediately revoke the I-140 if the employer withdraws the petition within 180 days of approval. If it is after 180 days of filing, USCIS will not immediately revoke the I-140 based on the petitioner’s request. An employer can also choose not to share a copy of the I-140 with the immigrant that the I-140 corresponds to. In that case, where the employer either withdraws the I-140 or does not wish to share a copy, it is possible to request it through the Freedom of Information Act. USCIS will have  a copy of your I-140 and the record of your priority date.

 

Checking Your Priority Date: Visa Bulletin

 

Once you have received a priority date, it is important to look at the visa bulletin to check how close you are to being eligible to file for your green card application, i.e. your I-485 application. Here is the link to the current visa bulletin website. For EB3s, scroll down to “Employment Based Preferences” and find the final action dates table. A final action date is the date when green card numbers are available to be issued for the corresponding country and category. 

 

Reading the Visa Bulletin

 

On the left side of the chart is the category of statuses. The top indicates applicable countries that correspond with the category type. “C” indicates that the priority date for that country is current. Current means that there are green cards available for that applicable country and category. As a result, an immigrant that meets that criteria can apply for their Form I-485 adjustment of status immediately. The dates on the next chart, titled “Dates for Filing of Employment-Based Visa Applications” refers to application dates, which is not the same as priority dates. Any priority dates that are earlier than the final action dates in the corresponding country and category can file for adjustment of status to receive their green card immediately. Final action dates and application dates change monthly and can push the dates backward or forwards. It is important to regularly check the visa bulletin to see any changes that might allow you to file for your green card.

 

Changing Categories: Porting to EB2

 

In some cases, because there are longer wait times for EB3s, it is possible to change categories to EB2. This is called porting. It is highly recommended that you talk with your employer and attorney before doing this. You will need to meet the requirements for the category you are seeking to change into. Here is the link to a guide that explains the differences between EB2 and EB3. Here is the link to the EB2 visa to green card guide to understand what the requirements are for EB2.

 

Predictions for Priority Dates- US Department of State: Consular Affairs

 

The Department of State’s Chief of Visa Control and Reporting Division, Charlie Oppenheimer. in a Q&A session has answered some questions about the upcoming changes to the visa bulletin that should be expected in the coming days for EB3s. He has stated it is unlikely that any employment-based category final action dates will be moved backward for either FY2021 or FY2022. In contrast, Mr. Oppenheimer stated that most categories that are not current, including EB3, will move the final action dates forward quickly around 3-8 months at a time. The fiscal year starts in October every year. 

 

Feel free to contact us at Michael@AshooriLaw.com in regards to any questions you have.