September 2014

Immigration Law Newsletter, September 2014

A New Interpretation of INA §203(d) Can Remove Green Card Backlogs

The U.S. immigration system puts a limit on the number of green cards that can be granted to aliens in a given year. The annual numerical limits for the employment-based preference categories and the family-based preference categories are 140,000 and 226,000, respectively. Within each category, the numerical limits are further divided into per-country quota. As of the time of writing this newsletter, if one were to file a labor certification under the India employment-based, EB-3 category, it will take over 10 years for the Beneficiary’s priority date to become current. Even worse, the married sons or daughters born in Mexico to U.S. citizens have to wait more than 20 years in order for their priority dates to become current. INA § 203(d) specifies who will be counted against the annual numerical limits, and a new interpretation of INA § 203(d) would eliminate all backlogs in the employment-based preference categories and make them “current”. The new interpretation would also significantly accelerate the cut-offs in the family-based preference categories.

INA § 203(d) provides:

A spouse or child defined in subparagraphs (A), (B), (C), (D), or (E) of section 1101(b) of this title shall, if not otherwise entitled to an immigrant status and the immediate issuance of a visa under subsection (a), (b), or (c) of this section, be entitled to the same status, and the same order of consideration provided in the respective subsection, if accompanying or following to join, the spouse or parent.

The above regulation does not explicitly authorize or prohibit the Department of State to count derivative family members against the annual limits under the employment- or family-based preference categories. However, the Department of State has always interpreted the annual limits to include not only the principal Beneficiary, but also the spouse and children of the principal Beneficiary. The result of this interpretation is that many Beneficiaries in either category have to wait years or even decades for their green cards. Even worse, many young people who were initially eligible for the green cards as derivative Beneficiaries will “age out” by the time their priority dates become current, and therefore require a new basis for their own green card petitions, which may lead to additional wait time.

To address these concerns, President Obama may implement a policy that is based on a new but equally plausible interpretation of INA § 203(d), which would count only the principal Beneficiaries of immigrant visa petitions toward the annual numerical limits. This policy, if implemented, would eliminate backlogs in the employment-based preference categories and make them “current” for the foreseeable future. In the case of family-based preference categories, the new interpretation of INA § 203(d) would significantly accelerate the cutoffs but the backlog would still persist.

How to Enter Foreign Worker’s Qualifications in Section K of ETA Form 9089

In adjudicating a labor certification application, the Department of Labor (DOL) must assess whether the Beneficiary of the labor certification possesses all the qualifications for the employer’s job opportunity. In Section H, Question 14 of ETA Form 9089, the employer lists specific skills and other requirements for the job opportunity. In Section K, the employer must demonstrate that the Beneficiary possesses the required skills and experience. To do so, the employer should separately list in Section K all the Beneficiary’s qualifications, such as employment experience, certifications, licensure, or other credentials. For example, if the Beneficiary has held two jobs in the past three years and holds a license that is required to perform the duties of the employer’s job opportunity, then the employer should complete Section K, Question Numbers 1-9 for Job 1 and Question Numbers 1-9 for Job 2, and list the license information under Question 9, Job 3. OFLC (DOL’s Office of Foreign Labor Certification) specifically instructs that the license information “should be entered after all jobs held in the past three years are listed, under Question 9, “Job Details (duties performed, use of tools, machines, equipment, etc.); Question Numbers 1-8 requesting information about the job can be left blank.”

It has been reported that the PERM online system generates an error message when employers attempt to file the labor certification application with Questions 1-8 of Section K entry blank. In response, OFLC has advised that the labor certification application will not be denied or audited as a result of receiving and ignoring the error message in this specific circumstance. OFLC also has advised that employers can avoid the error message by entering text such as “N/A”, “0”, or “01/01/0001” where applicable.

Analysis of September 2014 Visa Bulletin Regarding Employment-Based Preference Categories for Indian and Chinese Nationals

Historically, the progression of cut-off dates in EB-3 has always been slower than that in EB-2 due to high demand. For example, India EB-2 moves faster than India EB-3. The May 2014 visa bulletin showed the cut-off date as November 15, 2004 for India EB-2, and October 1, 2003 for India EB-3. The September 2014 visa bulletin shows the cut-off date as May 01, 2009 for India EB-2 and November 08, 2003 for India EB-3. The slow movement of the India EB-3 dates have resulted in the National Visa Center (NVC) receiving an increase in requests for India EB-2 visa numbers from USCIS based on approved EB-2 “upgrade” petitions filed on behalf of the Beneficiaries who have earned advanced degrees (i.e. U.S. Master’s degree or higher, or equivalent) or additional job experience, and has EB-2 qualifying job offers. For example, from November 10, 2013 and November 20, 2013, the NVC received requests for approximately 150 India EB-2 visa numbers per day from USCIS, most of which were EB-2 “upgrade” petitions. As a result of the unexpected high demand of India EB-2, the Department of State has predicted that the India EB-2 cut-off date will likely retrogress in fiscal year 2015, possibly as early as November 2014.

On the contrary, in June 2013, the cut-off date for China EB-3 advanced faster than China EB-2. This trend has resulted in the NVC receiving numerous China EB-3 visa numbers from USCIS based on approved EB-3 “downgrade” petitions for Chinese EB-2 Beneficiaries seeking to take advantage of the more favorable EB-3 cut-off date. The increased demand resulted in China EB-3 cut-off date retrogressing to October 1, 2006 from October 01, 2012, in June 2014. The retrogression dissuaded many Chinese EB-2 Beneficiaries with very early priority dates from downgrading to EB-3. Consequently, the demand for China EB-3 was lower than expected, and allowed this category to slowly advance to November 01, 2008.