Bypassing EB-3 Backlog

As evident from the Visa Bulletins published on January 2007 and February 2007, the Employment Based Third Preference quota (EB-3) has become completely stagnant as backlogs continue to grow, fuelled by increasing demand against the comparatively nominal cap allowed. For nationalities like Indians and Chinese, the waiting period might exceed five years, unless the US Congress acts soon.

Meanwhile, our team at Immitips has come up with a few strategies to bypass this backlog without jeopardizing an employee’s existing place in line.

Option 1: Re-file under 2nd Preference & Transfer the Old Priority Date

Under current regulations, the U.S. Department of Labor (DOL) will permit an employer to file more than one LC (Labor Certification) for the same employee.

Firstly, an employer may file a second LC for an employee and retain the filing date of the first LC.  This is possible only if the first LC was filed under the old paper-based system and if the second LC is essentially identical to the first. But to retain the original filing date, the employer must withdraw the first LC at the time of filing for the second LC.

Secondly, an employer may also file a second or subsequent LC for an employee without jeopardizing an older LC case. In this situation, the second LC will be accorded a new filing date but the employer is not required to withdraw the first LC.

NOTE: An individual does not actually “possess” a priority date until the CIS has approved an I-140 for that employee. The priority date granted by the CIS is the date the LC was filed. Thus, a pending or approved LC does not mean the employee has a priority date. Until an I-140 has been approved based on an approved LC, the employee merely has an LC “filing date.” An LC filing date is not transferable; a priority date is transferable.

Option 2: Substitute on Another Approved LC & Transfer the Old Priority Date

Sometimes an employer may have an approved LC but the particular employee is no longer with the company i.e. the employee may have received permanent residence through marriage; left employment; or was terminated.

In such a case, the employer is free to use the approved LC to file an I-140 for a different employee, as long as the employer continues to have a bona fide job opening and to offer the same terms of employment. Also, the substituted employee must have met all the requirements for the position before the LC was filed. When substitution is approved, the employee receives the old LC filing date as a priority date.

If the employer later determines it has a job opening for a different position that requires a bachelor degree plus five years experience, or a master’s degree, it may file a new LC for that employee. When that LC has been approved, the employer may file a second I-140 for that employee. The new I-140 will be approved under the 2nd preference quota. As a bonus, the employee will receive the May 1, 2001 priority date (from the 3 rd preference I-140).

NOTE: With DOL pushing for an approval on its Final Rule, which will disallow such substitution, employers may not have much time left in their hand. We suggest they hurry up and get the substitution done within the next two to three months, before the Rule comes into effect.