You and your colleague sit down for coffee (via social distancing outside of course); and as you casually talk about your pending applications for Employment Based (“EB”) Sponsorship, your colleague tells you the good news…”My EB category came current this month so I’m getting my green card finally. You look at him or her in amazement… but what about me?!
EB sponsorship is a highly sought-after U.S. Immigration benefit by foreign national employees working and residing in the United States. A U.S. employer may petition for his or her Non-immigrant worker in Employment Based Categories that are designated by the Department of State (“DOS”). In this article we explain Employment Based Green Card Sponsorship, also called “EB” sponsorship for short, and how to take advantage of whichever EB category comes current with your priority date.
A priority date is assigned by the Department of Homeland Security. The Department of State (“DOS”) issues a report monthly called the Visa Bulletin that informs when priority dates are current allowing applicants to adjust status to U.S. Permanent Residents.
The most popular categories of U.S. employment sponsorship is EB-1, EB-2 & EB-3. For certain countries such as India and the Philippines, the visas are usually deeply retrogressed due to the high population and number of applicants alone through the EB based green card process. For these countries, being strategically positioned to take advantage of a DOS announcement that visas are current for one’s priority date is often treated akin to winning a pot of gold.
This month (October 2020) the EB-3 category became current for Indian nationals with applications having a priority date of 2015. Yet the higher EB-2 category is currently still retrogressed to 2011. Those in the EB-2 higher employment based category are understandably disappointed. However, those who hired experienced U.S. immigration legal counsel were able to still propel forward and apply for U.S. Permanent Resident status in EB-3 category as . But how? ..We explain below.
How to be Eligible in Any of the First Three Employment Based Category When Your Priority Date is “Called”
First, our immigration lawyers generally avoid this dilemma for our clients by filing from the outset in more than one EB based category. A U.S. employer or business may file as many concurrent I-140 employment-based petitions as needed to maximize the highest chances of a favorable and fast(er) adjudication of the beneficiary employee’s Permanent Visa status. This avoids employees losing out when another visa category, not considered at initial filing, becomes current .
The good news, however, is that there is still one last maneuver that allows the individual who only holds one (1) retrogressed EB based category to become eligible to apply for Permanent Status in a different EB category in less than 30 days.
Here is the U.S. Immigration law:
Subsequent Petitions—An EB 1st, 2nd, or 3rd preference is entitled to the earliest priority date where subsequent 1st, 2nd, or 3rd preference submitted, unless the prior petition is revoked due to fraud or willful misrepresentation of a material fact, revocation of the LC, invalidation of the LC by DOS or USCIS, or a determination that there was a material error. 8 CFR §204.5(e).
Interpreted — this is what the law means: Once the DOS visa bulletin is published, and where it reflects that an EB category is current for your priority date; even though one has not been filed in this “winning” category, the object is to file a new I-140 concurrently with an application for U.S. Permanent Resident Status (I-485) via premium processing as soon as possible. The result is– your original priority date will be “recaptured” in the new EB category, and you will not miss out on filing for your Permanent Status, also known as a “Green Card”.
To schedule a consultation with one of our U.S. immigration lawyers you may email [email protected] or call us at our phone numbers conveniently listed at www.vasselllaw.com. Standard one hour consultations or an initial 20 min free screening meeting with our lawyers are available. Video consultations and limited in office appointments may be requested.
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