Why The China Born EB-3 Has Surpassed Eb-2 Visa Availability For The First Time Since October 1993.

by Alan Lee

The phenomenon has struck again of the EB-2 (employment-based 2nd preference - members of the professions holding advanced degrees or persons of exceptional ability) visa availability date for China being surpassed by the EB-3 (employment-based 3rd preference - skilled workers and professionals) date. The visa bulletin for June 2013 shows visa availability for China-born EB-2 petitions filed by July 15, 2008, and EB-3 filed petitions by September 1, 2008. The last time that we can recall this happening was the period from October 1993 - January 1994, when China's EB-2 was at December 1, 1992 and EB-3 at July 1, 1993 (October 1993 chart). During that time, we accommodated many requests to file new EB-3 I-140 petitions for cases in which EB-2 I-140 petitions had already been filed.

What does the EB-3 advancement of 9 months from May 2013's December 1, 2007 availability date to June's September 1, 2008 date indicate? Advances in the employment-based categories are usually measured in weeks, not months. From past observation, it appears that the Department of State is leaping the category forward to see how much visa demand actually exists in the category, not only for China, but for the world. In September 2012, the world-wide EB-3 category except for certain countries was at October 1, 2006, and China-born stood at December 15, 2005. The world has now almost leaped 2 years to September 1, 2008 for the visa chart of June 2013, and China has jumped an amazing 2 years and 9 months to the same date. The Visa Office of the Department of State consults with U.S.C.I.S. to determine the level of demand, and the agency can inform it of the number of cases pending in its inventory. However, the figure is necessarily inaccurate as many individuals give up over the years because of the long backlog, others have received permanent residence through other means, and already counted filed I-140 petitions may be double counted in the I-485 adjustment of status inventory. The Visa Office is thus in the same posture as a fisherman throwing out many lines (large monthly advancements in date) to see how many fish are biting (actual demand). If there is little demand, more lines are thrown in the next month. If there is overwhelming biting on all the lines, the Visa Office stops advancing the dates and may begin to retrogress them.

What is one to do in this situation if he or she is holding an approved EB-2 I-140 petition instead of one under the EB-3 category? There is no standard advice as this is an anomalous situation in which there is little precedent. It would appear, however, that if an individual's priority date is not becoming current, nothing is required to be done. Where the priority date will become current under EB-3, the individual can file for adjustment of status on form I-485 with a new I-140 petition filing under the EB-3 category. The current I-140 form accommodates this in Part 4. Processing Information by asking in item 7, "Is the petition being filed without an original labor certification because the original labor certification was previously submitted in support of another Form I-140?" And if the answer is "yes", the form requests the petitioner to attach an explanation. The problem here may be that the Visa Office could soon regress the category if it discovers that it has too much demand and EB-2 then surpasses the EB-3 availability date once again. At that point, the applicant may have to wait a much longer period of time to actually obtain permanent residence unless he or she takes further steps to change the petition category to EB-2. That process may or may not prove to be complex in the end. One must remember that the I-140 petition will not allow petitioners to check mark more than one category when filing.

A related question is whether China-born individuals should strive towards positions which require masters degrees or their equivalent for PERM labor certifications to be eligible for later EB-2 I-140 filing. The peculiar stance in which they presently find themselves may give pause to that inclination.

The amazing sight of EB-3 overlapping EB-2 for the China born is now before us, and regardless of the choice(s) of the petitioner and individual, the affected China-born are the puzzled and happy recipients of the latest visa chart.

This article © 2013 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12), and recognized as a New York Area Top Rated Lawyer in 2012. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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