WOW!, just WOW!!! The employment based third preference (“EB-3”) cut-off-date for Philippines born beneficiaries of approved I-140 immigrant visa petitions has jumped dramatically in the past four months. Historically, the EB-3 cut-of-dates for the Philippines have lagged far behind the world-wide cut-off-dates for this heavily “oversubscribed” category of immigrant visas (no individual country’s cut-off-date can go beyond or by-pass the world-wide cut-off-date). For many months, the EB-3 world-wide cut-off-date has been April 1, 2011, which meant that nobody in the waiting line for EB-3 immigrant visas born in any country should have been able to secure an EB-3 immigrant visa number unless their priority date (date of filing PERM Application with U.S. Department of Labor or I-140 petition with USCIS, if individual PERM is not required) was before April 1, 2011. For Philippines born EB-3 petition beneficiaries, the backlogs/cut-off-dates, were even further back. Since June of 2014, that situation has changed dramatically. Philippines born EB-3 beneficiaries are used to seeing monthly Visa Bulletins with no movement at all or only a few day’s movement in EB-3 cut-off-dates, and they have settled in for what was once anticipated to be a seven to ten year wait for EB-3 immigrant visa availability, after the approval of their I-140 petitions (filed on their behalf by an employer petitioner.) That all changed, starting with the May 2014 Visa Bulletin, resulting in an advance of the EB-3 cut-off-date for Philippines born EB-3 beneficiaries of 40 months over a 4 month period from June – September 2014 Visa Bulletins. The May 2014 EB-3 worldwide cut-off-date was October 1, 2012, and the EB-3 cut-off-date for Philippines born EB-3 beneficiaries was November 1, 2007.
The EB-3 dates for beneficiaries born in the Philippines had finally moved past the “bulge” created when all employment based immigrant visa preference categories went “current” in July 2007, and many thousands of EB immigrant visa beneficiaries filed I-485 applications for permanent resident status with the USCIS. USCIS and the Department of State Visa Office tried to immediately close that open window in July 2007, and our law offices were the first out of the gate with a class action law suit against the government that led to a settlement resulting in the window remaining wide open for a short time. Many of those individuals who filed for permanent residency (based on employment based immigrant visa petitions) in July of 2007 are still waiting for immigrant visa number availability.
In the June 2014 Visa Bulletin, the world-wide cut-off-date retrogressed from October 1, 2012 (in the May 20014 Visa Bulletin) to April 1, 2011, and it has remained at that April 1, 2011 world-wide EB-3 cut-off date for the Visa Bulletins issued by the Visa Office for the months of June, July, August, and September of 2014. During that time, from June through September 2014, the EB-3 cut-off-date for Philippines born EB-3 visa petition beneficiaries has reflected the following movement:
June 2014 Visa Bulletin: January 1, 2008 (moved from 11/1/2007 in the previous month) advanced 2 months
July 2014 Visa Bulletin: January 1, 2009 (moved from 1/1/2008 in the previous month) advanced 12 months
August 2014 Visa Bulletin: June 1, 2010 (moved from 1/1/2009 in the previous month) advanced 18 months
September 2014 Visa Bulletin: April 1, 2011 (moved from 6/1/2010 in the previous month) advanced 8 months to finally match world-wide date
Why did this rapid cut-off-date advance happen, and how long will it last?
There are many possible reasons/explanations for why this occurred, many of those explanations involve the manner in which limited numbers of immigrant visas are allocated by law, and how those allocations are used, or are not used. According to the Department of State’s Charlie Oppenheim, who is the DOS’ chief for producing the Visa Bulletin, the Philippine EB-3 date should continue to be consistent with the world-wide (rest of the world) date for at least the next few months. Usage of Philippine EB-1 and EB-2 numbers has decreased, leaving more numbers for Philippine EB-3.
If I am the beneficiary of an approved I-140 employment based immigrant visa petition, what should I be doing?
In short, BE PROACTIVE! Don’t assume that your employment based I-140 petitioner or their legal counsel are going to notify you that your priority date has now been reached. Take an active hands-on role in the processing of your immigration matters, and follow the monthly State Department Visa Office Visa Bulletin, each new issue being released about 15 days before the start of the next month. Know what your priority date is, and for what category of immigrant visa, so that you know what to look for in the Visa Bulletin. Follow the trends of cut-off-date advancement or retrogression in each Visa Bulletin. Learn how the immigrant visa allocation and cut-off-date system works (based on country of birth, not country of citizenship), and have a passing understanding of the concept of “cross-chargeability”, whereby your wait for an immigrant visa may be shorter if your spouse was born in a country with a smaller backlog in your category, even if your spouse is not employed or herself/himself the beneficiary of an immigrant visa petition. Perhaps most importantly, stay in touch with your I-140 employer/petitioner, particularly if you are residing abroad, or are residing in the U.S. but are not currently employed by that I-140 petitioner, because a “current” priority date and “current” EB-3 immigrant visa availability will do you very little good if the I-140 employer/petitioner has withdrawn the job offer or I-140 petition, and refuses to issue a current employment offer re-verification letter. You may find yourself unexpectedly needing to start the entire lengthy PERM and I-140 Petition process over again with a new employer/petitioner, though you may be able to retain your existing priority date. If you are in the U.S. waiting for immigrant visa availability, keep track of your authorized stay expiration (and the expiration dates for derivative dependent spouses and children, as they may be different.) Take great care to maintain lawful nonimmigrant status so that you may qualify for adjustment of status in the U.S., and will not need to travel back to your country of birth for immigrant visa processing.
Always keep your required paperwork and documentation in a safe and secure location, perhaps advising other family members of your assembled documentation. Review documentation requirements periodically with your legal counsel, as some requirements may change over time and as the State Department Foreign Affairs Manual undergoes changes or amendments. For employment based cases, both USCIS and Consular Posts abroad will generally require a current dated reaffirmation of your I-140 Petitioner’s offer of employment, showing a detailed full-time “permanent” job description & list of job requirements, and the rate of pay & benefits. If you have changed employment or transferred your H-1B nonimmigrant status to a new/different employer since your PERM/I-140 petition was filed and approved, you will need to assess the viability of securing an employment offer re-verification from your former employer/petitioner. Just because you transferred your H-1B to a new employer does not mean that your I-140 petition has been transferred as well. You may find yourself in the position of having to complete the PERM and I-140 process again with your new employer before being able to secure permanent residency. Again, be proactive, and know your situation and options at all times. Being reactive instead of proactive often results in unnecessary delays and costs.
Immigration Attorneys, LLP focuses its practice in the area of immigration and nationality law. We represent clients in a wide variety of immigration case matters including family and employment-based work, deportation defense work, immigrant and non-immigrant visa work, consular processing overseas and naturalization matters.