In a recent positive development for visa applicants under the employment-based third preference (often referred to as EB3) category visa, the State Department’s October 2020 Visa Bulletin on September 24, 2020 shows that all employment-based preference categories for Filipino nationals are now current. When a priority date of a visa petition is current, it means that the visas are available.
Many Filipino EB3 visa applicants will benefit from this visa availability including professionals, skilled or even unskilled workers. To take advantage of this visa availability, however, one must understand the process of immigrating to the United States through employment-based preference categories.
Concurrent Filing of Employer Petition and Adjustment of Status
Persons seeking to immigrate to the United States as employment-based immigrants undergo two processes before an immigrant visa can be issued.
First, they must establish that they qualify in one of the employment-based immigrant categories, by having an employer file an “Immigrant Petition for Alien Worker”.
Second, for those who are already in the US, the Adjustment of Status can be concurrently filed with the employer petition; or, “Consular Processing” for those who are still outside the United States.
The U.S. Citizenship and Immigration Services (USCIS) does not have to require a previous approval of an employer petition before being able to pursue the second step of the Adjustment of Status process. This is the “concurrent filing” which allows persons applying for permanent residence to file both the Application to Register Permanent Residence together with the employer’s Immigrant Petition for an Alien Worker.
This is a huge advantage because applicants who are currently inside the US can wait for their green card approvals in the United States (without needing to leave the country) and at the same time be qualified to get an employment authorization card pending the green card approval.
Concurrent filing affects only the Adjustment of Status process and is permitted for applicants who are already in the United States and does not apply to those pursuing consular immigrant visa processing at the U.S. Embassy. It is important to remember, however, that there are numerous legal requirements that an applicant needs in order to benefit under this concurrent filing procedure. Among others, the applicant is required to be in “lawful” status or has 245(i) eligibility and not subject to grounds of inadmissibility..
Pre-Certified Occupations: Nurses & Physical Therapists
This new development benefits EB3 immigrants who are professionals, as well as other skilled or unskilled workers whose PERM applications have already been approved. Those exempt from the labor certification and who are considered pre-certified under the Schedule A occupations as per Department of Labor regulations may also concurrently file their applications.
Significant numbers of Filipino professionals are beneficiaries of existing EB3 petitions. But we also know that there are many more Filipino nurses and physical therapists who are already pre-certified and can immediately take advantage of this visa availability.
Schedule A occupations are those jobs for which there are not a sufficient number of U.S. workers who are able, willing, qualified, and available to fill the number of available jobs that exist in the United States, and the wages and working conditions of U.S. workers similarly employed will not be affected by the employment of foreign workers in Schedule A occupations. Currently, there are only two designated Schedule A occupations: First are the RNs; and Second, the Physical Therapists.
Other health care workers such as licensed vocational nurses (LVNs), licensed practical nurses (LPNs), certified nurse assistants (CNAs), as well as nurses’ aides and caregivers do not qualify for Schedule A pre-certification. However, they may still qualify and benefit under this concurrent filing if they have approved Labor Certifications or PERMs.
Due to the pandemic and the visa restrictions brought about by Trump Proclamations, very few family-based visas were issued the past few months, resulting in excess visa numbers that were re-allocated to the employment-based petitions. The forward movement of the priority dates is a result of the infusion of unused family-based visa numbers to the employment-based visas for Fiscal Year 2020.
It is uncertain as to when the employment-based preference categories for Filipino nationals will remain current. But for now until October 31, those who do qualify are encouraged to explore ways of immediately applying for the visas while the availability remains current, for it is unknown when the backlog will build up again.
(Lourdes ‘Atty Lou’ S. Tancinco is an immigrant advocate and legal counsel based in San Francisco CA. She is the principal and co-founder of Tancinco Law PC and may be reached at [email protected],www.tancinco.com, facebook.com/tancincolaw, Linkedin.com/in/attyloutancinco or at 1-888-930-0808)
Subscribe to INQUIRER PLUS to get access to The Philippine Daily Inquirer & other 70+ titles, share up to 5 gadgets, listen to the news, download as early as 4am & share articles on social media. Call 896 6000.