VISANOW Voice Newsletter - August 2006

Schedule A - Fading Fast

The Department of State (DOS) exerts strict control over the amount of immigrant numbers it makes available each year. These controls often lead to extended wait times for I-485 (application for permanent residency) filing in the Green Card process.

In May 2005, nurses and physical therapists received a special exemption to the waiting game that typically accompanies I-485 filing when the DOS announced a special “Schedule A” filing classification. Schedule A is a one time allocation of 50,000 immigrant visa numbers available exclusively to nurses and physical therapists. Initiating this program greatly decreased Green Card processing times for members of these professions.

The DOS recently announced, however, that the Schedule A visa numbers are running out. They have estimated that the supply of 50,000 immigrant visa numbers will be exhausted by October 2006, and will likely lead to a cut off date at the beginning of November. Lacking this option, nurses and physical therapists will be forced to file in another preference category, likely EB-3, and face additional delays.

In light of these announcements, we would advise all nurses and physical therapists considering a Schedule A filing to act quickly. Filing an I-485 before the impending close of Schedule A would require starting the Green Card process almost immediately for those who have not yet done so. We will continue to monitor this situation for any new announcements.

September Visa Bulletin Shows All EB-1 Categories Current, Progress for EB-3

The DOS Visa Bulletin for September 2006 shows that the EB-1 preference category is now current for all chargeability areas. India had previously been the only nation that had a cutoff date. This means that Indian nationals with extraordinary ability, such as those in multinational managerial/executive positions, may now concurrently file their Form I-140 (employment-based immigration petition) and Form I-485 (application for permanent residency).

There has been progress in the priority dates in the EB-3 preference category for all nations except for Mexico, a sign that the DOS is maximizing the use of remaining numbers for Fiscal Year 2006. The DOS continues to warn that there will be some slowdown in the progress of priority dates in the coming months, with a special alert concerning the EB-3 category. As the U.S. Department of Labor (DOL) completes the processing of all pre-PERM labor certification applications at its two backlog elimination centers by its projected completion date of September 2007, many with early priority dates, it is predicted that there will be a higher demand for EB-3 preference numbers in Fiscal Year 2007.

New Premium Processing Service

U.S. Citizenship and Immigration Services (USCIS) has announced the addition of two new classifications to the Premium Processing Service, which allows U.S. businesses to pay a $1,000 Premium Processing fee in exchange for processing of their cases in 15 calendar days.

Starting on August 28, USCIS began accepting Premium Processing requests for applications involving two employment-based immigration “categories” within the third employment-based “preference.” Those categories relate to EB-3 Professionals and EB-3 Skilled Workers. Employers file for both these categories using the Immigrant Petition for Alien Worker (Form I-140). Premium Processing is not available to “other workers” in the EB-3 category for jobs that do not require two years of education, training or experience.

It should also be noted that employees with an approved labor certification application in the EB-2 category that are very close to maxing out the six-year limit on the H-1B may also file an I-140 under premium processing in the EB-3 category. By having an approved I-140 in the EB-3 category, the employee will be entitled to a three-year extension to their H-1B visa. The employee will also be able to file an additional I-140 at a later time in the EB-2 category.

Backlog Center Status Tracking

The DOL Backlog Centers can currently only be contacted through email. The DOL has been known to tell applicants that they cannot check their case status directly and should have their attorneys call DOL-provided phone numbers for status updates. These phone numbers, however, only lead to pre-recorded messages informing the caller that the DOL does not provide updates on labor certifications over the phone.

To date, the DOL Backlog Centers can only be contacted through email, and even then, the information provided is limited. The Backlog Centers will state only one of two options: (1) the applicant’s case is in process, or (2) the Center has no record of the case. The Center will not provide information on the actual case stage or any other details. The DOL does plan on forming a queue system to track case status, but there is currently no further information on when this system would be instituted. We will keep you informed on any updates in this regard.