Visa Numbers Are Current But There Are Filing Limitations

Professionals and other skilled workers received surprisingly good news just over a week ago when the State Department announced that visa numbers for all employment categories except the category for unskilled workers would be current in July 2007.

This means that beneficiaries of approved petitions or labor certifications filed under any of the abovementioned categories, no matter when the priority date is, would be eligible to file for adjustment of status (I-485) and obtain benefits.

These benefits include employment authorization and travel permit and they will be available to the applicants for as long as their applications are pending. In addition, they may be able to change jobs or employers in the same or similar occupation if their I-485 applications have been pending for at least 180 days.

The announcement was intended to induce the filing of adjustment of status cases with the USCIS and to maximize number use under the annual numerical limit.

As late as last month, the cutoff date for 3rd preference was May 8, 2001 for India and August 1, 2003 worldwide, including the Philippines. The last time that visa numbers for all employment-based categories were current was December 2004.

But the State Department was quick to point out that the current availability could last only for a short period. Retrogression could likely occur this October if not September. And when retrogression comes back it will be severe.

Applicants have therefore a limited time to prepare their documents in support of their I-485 applications. Along with their approved I-140 petitions or labor certifications they need to present proof of their lawful status in the US unless they are eligible under Section 245(i) or 245(k).

Section 245(i) refers to beneficiaries of labor certifications or immigrant visa petitions that were properly filed on or before April 30, 2001.

Section 245(k) allows certain employment-based applicants with expired status to file provided that they have not been out of status for a total of more than 180 days.

Schedule A aliens such as registered nurses and physical therapists who are exempted from the labor certification requirements may benefit if they are in the US. But they have time constraints if they are just starting the green card process.

The prospective employer has to file the prevailing wage request which could take 3 weeks in New York and then post the job availability notice for 10 business days. At least 30 days must pass after the posting before the I-140/I-485 application can be filed.