Most entries below contain actual legal discussions of events directly related to Filipinos in or immigrating to the United States.
Remember- These writings are provided for general information only and do not constitute legal advice, nor do they create any attorney-client relationship. Each person's needs and requirements are different and require a personal evaluation to determine the proper legal course of action.

Wednesday, August 12, 2015

Waiting Out Philippine EB-3 Retrogression

In April earlier this year, the Philippine EB-3 cutoff date was October 1, 2014.  An immigrant visa was available to anyone with a current priority date and their paperwork completed.  The cutoff date for next month (September, 2015) is now December 22, 2004 – a 10-year regression.  No one with a priority date newer than December 2004 can presently ask for permanent residence.

 If history is any indication, the wait may be long before Philippines EB-3 priority dates return to 2014.

If you find any of these terms confusing, you may wish to review Basics and Tips for Understanding the Visa Bulletin

Philippine EB-3 has retrogressed several times this century.  One of the most significant retrogression events was in July, 2008.  Just as with the current retrogression, the 2008 event was preceded by many months of rapidly advancing priority dates.  In the nine months before the July 2008 retrogression, the Philippine EB-3 cutoff dates advanced almost 3 1/2 years.  It was not until March 2012, after 44 months of gradual advances, the cutoff dates returned to the where they had been in July 2008.

Our current retrogression began in May.  In the nine months leading up to May, the cutoff date for EB-3 Philippines advanced over four years – a more rapid advance than what preceded the 2008 retrogression. 

Regressing priority dates cause many people to feel confused and uncertainty about their cases.  Here are a few thoughts to consider during the wait.

IF Your Adjustment of Status Application was Filed and Now Waiting for Priority Date

If you filed for permanent residence earlier this year before the retrogression, you will not be harmed.  Although you will not be granted Permanent Residence until your priority date is current again, you will continue to be eligible for employment and travel authorization.  

The decision to drop H-1B/H-4 status while the adjustment application is pending will be the subject of a later post.  However, many choose to rely on the employment and travel benefits available through the residence application, thus avoiding the costs associated with H-4 extensions and H-4 EADs.  Remember, once you file for permanent residence, there are no additional fees for renewing employment authorizations and advance parole.

Periods of retrogression can lead to the sometimes useful legal option called Employment-Based Portability.  In some cases, after your application for permanent residence has been pending over 180 days, you can move to a different employer as long as the new job is in the “same or similar occupational classification”.  When eligible for Employment-Based portability, a new labor certification or petition is not required.

If you are stuck in this long wait for a current priority date, do not be too disappointed by this set back.  Always remember that it was the exceptionally rapid cut off date advancement that gave you the opportunity to file early for Permanent Residence in the first place.

H-1B with Approved I-140 but no Residence Application Filed

Here, the options are few.  As you already know, you cannot file for permanent residence until your priority date becomes current.  There has been some talk of changing this law, thus allowing you to file for residence immediately upon approval of the I-140, but I do not see that happening in the near future.

Most H-1Bs will just continue to remain in H-1B status until their priority dates become current.  For some, even without retrogression, the wait can run to ten years or more.  AC21 section 104(c) allows you to continue extending your H-1B status in 3-year increments, and we now have the H-4 EAD rule to help ease the burden of the wait by allowing employment authorization for H-4 spouses, also in up to 3-year increments.

Waiting for the Consular-Issued Immigrant Visa

Unless your visa case was interview-ready and you were able to join the mad rush for a visa in May at the Manila Embassy, you are the group most-effected by retrogression.  There is little that can be done for workers in need of an immigrant visa to make their first trip to the United States.  Unless you are eligible for some other temporary visa, there is nothing to do but to wait and hope the employer will still have a position available when your priority date is again current.

Rapidly advancing dates sometimes raise a false belief that the wait for an immigrant visa is almost over.  Unfortunately, that is often not the case.  For immigrant cases still at the National Visa Center, or cases yet to be started, the wait may now be lengthy. 

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