BUSINESS WATCH

Employment-Based Visa Retrogression: What is it and how does it affect the employer? By Dustin J. Kessler

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After PERM, the priority date is established as the date of the electronic filing of the application on Form ETA 9089.  If the category is employment-based but does not require a labor certification, then the priority date is established on the date the BCIS receives the I-140 Immigrant Visa Petition. However, the priority date does not attach to the case until the I-140 has been approved.   In order for an individual to obtain an immigrant visa, a visa number must be available. This is referred to as the priority date being "current." The priority date is current if there is no backlog in the category, or if the priority date is on or before the date listed as current in the DOS monthly Visa Bulletin. This Bulletin is accessible at www.travel.state.gov. You may sign up online to have the Visa Bulletin automatically e-mailed to you by the DOS each month. A beneficiary is eligible to adjust status or to be issued an immigrant visa only if he/she has a priority date on or before the date listed in the Visa Bulletin.

 

CONCLUSION

 

What does this mean for employers and their foreign national employees?

 

Although the above limitations refer to “visa” numbers, they also affect the adjustment of status process, whereby a foreign national seeks to change or “adjust” status from whatever status he or she currently holds in the U.S. to that of permanent resident. The adjustment of status process is regularly pursued by foreign nationals in lieu of immigrant visa processing abroad. Currently, foreign nationals present in the U.S. who wish to apply to adjust their status must have a visa number available to them in order to even file the adjustment of status application.  The most immediate impact of retrogression is that the beneficiary of an approved I-140 petition may have to wait for his or her priority date to become current in order to start the adjustment of status process, and consequently, obtain employment authorization. Foreign nationals currently living abroad will have to wait for their priority date to become current to receive an immigrant visa. Their visa petitions will be kept on hold until their priority date becomes current. For example, as of February 1, 2006, the cut-off date in the EB-1 category for nationals of India is February 1, 2004. This means that as of February 1, an Indian national who is a beneficiary of an approved I-140 petition but with a priority date of February 1, 2004 or later cannot apply for adjustment of status because his/her priority date is not current.

 

With the retrogression of the priority dates for employment-based visa categories, employers of foreign nationals must pay careful attention to planning the employee’s permanent resident process. Those foreign national employees facing many years of waiting for a priority date to become current must plan how they will be able to remain legally in the U.S. throughout the process. Individuals in H-1B status who have commenced the permanent resident process before they reach their fifth year in H-1B classification and whose permanent resident process is pending, may be able to extend their H-1Bs beyond the six-year limit by using the provisions of The American Competitiveness in the 21st Century Act of 2000.

 

Foreign nationals on L-1 visas and certain other time limited visas do not have the privilege of extending their stay beyond the maximum limit even if they have already commenced the permanent resident process. Such individuals, who may have to wait for many years for their priority date to become current, may explore the option of changing their status to H-1B visa as soon as it becomes available. These individuals should also consider changing to one of the visa categories that do not have the time limitations. These would include the TN (for Canadian and Mexican workers), the E-1 or E-2 for employees of foreign owned companies from countries with treaties with the U.S., the E-3 for Australian professionals, the H-1B1 for certain workers in specialty occupations from Singapore and Chile, and the O-1 visa for persons of extraordinary ability. This may help them prolong their stay in the United States to continue working for their existing employers while waiting for their priority dates to become current.

 

If you have any questions about hiring foreign workers, please contact either Dustin J. Kessler or Gregory B. Minter.

 

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