What Can We Do While We Are Waiting?
In his State of the Union address, President Bush unveiled his American Competitiveness Initiative, a comprehensive plan which includes immigration reform to bring US immigration laws in line with the current workforce needs of this country. He has said that this reform should include an increase in the number of H-1B visas available each year and should also include an increase in the number of employment-based immigrant visas in order to reduce the current backlog. This is very good news, but these things require an act of Congress and there is no way to predict when this act will come. So what do we do while we are waiting?
The obvious answer is that we have to “make do” with the immigration laws that exist right now. Currently, the Third Preference in the employment-based visa category (EB3) is backlogged to April 22, 2001 for applicants from the Philippines. This is the “Skilled Worker” visa category. The vast majority of labor certifications being filed are Skilled Worker applications. This is why the category is backlogged and is also why this backlog is having such a drastic effect on employment-based immigration. However, most of the other employment-based visa categories are not backlogged. Hence, if a labor certification is filed under one of these other categories, the beneficiary of that application will be able to apply for permanent residency immediately upon approval of the labor certification and will not have to wait in the backlog.
The visa category that currently represents the most promise for Filipino’s is the EB2 category. This category includes “Members of the Professions Holding Advanced Degrees.” To qualify for this category, the individual must have either a Master’s Degree (or higher) or a Bachelor’s degree plus at lest 5 years of progressive experience in their specialty. Most people coming to the U.S. do not have advanced degrees. However a significant number of people come to the U.S. with a Bachelor’s Degree and at least 5 years of experience, and many of these people could qualify for EB2.
What do I do if I haven’t filed anything yet?
If you have a job offer but your employer hasn’t filed anything yet, you should make sure your lawyer carefully analyses your case to determine whether it can be filed under the EB2 visa category or one of the other categories that don’t have backlogs. This has to be done before the labor certification application is filed. Once the application is filed, it will be nearly impossible to change visa categories without re-filing the labor certification application.
What do I do if I already have a pending labor certification or visa petition?
If you already have a pending application or petition, you will probably have to file another application or petition to qualify for EB2 – and this may mean starting all over again. However, this may still be a good idea depending on where you are in the process. The current EB3 backlog is nearly five years. A successful EB2 filing, for example, could result in permanent residency in as little as one year. Such a significant time savings could well be worth starting over if you are still early enough in the process.
