Jian Joe Zhou, Attorney at Law

China- and India-born aliens have a long backlog on visa numbers for PERM based EB-3 petitions. As of Visa Bulletin for June 2008, the EB-3 category’s cut-off date for China-born aliens and India-born aliens were March 22, 2003 and November 1, 2001, respectively. This means that, assuming the cut-off date moves with calendar data ( typically, it does not),a China-born alien who filed a PERM EB-3 petition in June 2008 will have to wait for more than four (4) years before he/she receives a visa number and becomes eligible to file form I-485. Similarly, the waiting time for India-born aliens in EB-3 will be around 6 years.

Due to the long waiting period, many China-born or India-born aliens have expressed disinterest when their employers offer to file PERM EB-3 petitions. With most employers, especially big companies, however, there is little flexibility to adjust the requirements from an EB-3 (bachelor level) to an EB-2 (master level) position. (Please note, EB-2 or EB-3 is determined by the employer’s minimum requirement for the position, not by the qualification of the alien.) Because of often the negative view of EB-3 petitions, people have overlooked the following significant benefits that EB-3 PERM petitions may provide.

1. EB-3 Petitions May Reserve an Early Priority Date for future EB Petitions

According to immigration regulation, the priority date associated with an approved I-140 petition in EB-1, EB-2 or EB-3 cases may be carried over to a later petition among the three categories. For example, an employer files an EB-3 PERM petition for a China-born alien, Mr. Chen, on November 1, 2005, and later on, the PERM and subsequent I-140 were approved. Mr. Chen changes job afterwards before I-485 could be filed. His new employer files an EB-2 PERM petition on November 1, 2007, and the new petition and I-140 were approved shortly thereafter. . Now, when filing I-485 based on his recently approved EB-2 petition, Mr. Chen may carry over his EB-3 priority date of November 1, 2005 and thus saves himself more than 2 years of waiting. In his I-485 petition, he is able to use the priority date reserved by his EB-3 PERM petition, while the new I-140 approval in the EB-2 category allows him to qualify for the EB-2 cut-off date.

As another example, on March 1, 2006, a university files an EB-3 PERM petition and I-140 petition for an India-born technician, Mr. Gupta. Both petitions were approved. Mr. Gupta published extensively during the following two years, and on March 2008, he filed an I-140 NIW petition. Assuming his NIW is approved, he will be able to carry over his March 1, 2006 priority date from the EB-3 petition to his NIW petition. This will allow him to file an I-485 when cut-off date for EB-2 moves to March 1, 2006and will significantly save the waiting time for him to receive a visa number.

Please note, in PERM based green card petition, the condition for an alien to reserve and carry over a priority date is the approval of the I-140 petition, while the priority date is the date of PERM submission date. In NIW cases, the priority date is the date of the filing of the I-140 petition.

2. EB-3 PERM Petition for H-1B Extension Purpose

An alien in H-1B status is allowed a maximum of six years of stay. However, two exceptions allow an H-1B alien to extend his/her status beyond the six-year limitation. According to AC21 Act, an alien who has filed either a PERM petition or an I-140 (in NIW or EB-1 cases) 365 days prior to the expiration of the six-year limitation will be allowed to extend his H-1B status annually so long as the petition is active. Another provision of AC21 Act allows an alien to extend H-1b status beyond the six year limitation so long as an I-140 petition has been approved and a visa number is not available, which would restrict the alien from filing the I-485 or receiving I-485 approval. In this exception, H-1B status may be extended in three-year increments, and there is no requirement as to when the initial filing was filed. So, an alien who files a PERM petition within the sixth year or later may receive this benefit so long as the I-140 is approved and a visa number is not available.

For example, Mr. Chen is a beneficiary of an EB-3 PERM case filed in May 2007. Mr. Chen reaches his six years of H-1B limitation on June 1, 2008. Mr. Chen’s employer may file an H-1B extension petition for Mr. Chen in March 2008 provided that the PERM or I-140 (if PERM has been approved) is still pending.

In another scenario, Mr. Gupta is a beneficiary of an EB-3 PERM case filed in May 2007, and his six years of H-1B limit ends on December 1, 2007. Mr. Gupta has good luck; his EB-3 PERM was approved within 3 days, and his I-140 was approved in November 2007. Since Mr. Gupta was born in India, his visa number is not available, and he can not file the I-485. Using the AC21 advantage, Mr. Gupta’s employer filed H-1B extension with a request for three years based on the approved I-140 (the PERM does not need to be filed 365 days prior to the end of the six year limit). Mr. Gupta received another three years of H-1B status after his six-year limit had passed.

Conclusions:

The above two sections illustrate the significant benefits EB-3 PERM petition may bring to China- and India- born aliens. In fact, it even brings benefits to aliens from other countries as the worldwide visa number (not including China and India) also has around two years of backlog. Alien workers who are offered EB-3 PERM petitions should utilize the advantages that the petition process may bring even though he/she might not be able to stay with the same employer until he/she receives the green card (I-485 approval).

Attorney Jian Joe Zhou is a co-managing attorney at Zhang & Associates, and he has eight years of experience in Labor Certification (including PERM, RIR and Traditional Labor Certification) process, and has experience of hundreds of successful PERM/RIR cases. He can be reached at @hooyou.com">jzhou@hooyou.com

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