With EB-2 and EB-3 Priority Dates Improving Slowly, Alternative Solutions Merit Consideration

The June 2011 Visa Bulletin reinforces uncertainty, and perhaps disappointment, for Indian and Chinese nationals in the EB-2 classification.  Despite the “extra” visas intended to spill into these categories, the improvement in visa cutoff dates is moderate – ten weeks for China and fifteen for India.

The EB-2 dates have not improved as much as anticipated and might not do so in the near future.  In fact, an unanticipated surge in demand over the next few months could still cause the State Department to slow or stop the availability of EB-2 numbers with short notice (i.e., before the issuance of the next monthly bulletin).  Thus, the re-filed EB-3 to EB-2 case that so many seek has begun to sound a bit less attractive, and there appears to be little hope that the situation will improve anytime soon.

Surely, Congress can improve the visa priority date situation, but given that legislative action seems unlikely in the near future, affected applicants would be wise to consider whether alternative options are possible.

Interestingly, an answer for many may be right under our noses . . . with our own employers (and their lawyers, of course).  Many EB-2 (and EB-3) applicants have been with their employers for years.  They often started their careers with their employer overseas, with their U.S. employment prompted by superior performance and, in many cases, displays of leadership.  Those who actually served their employers overseas in a managerial capacity for at least one year before coming to the U.S. may qualify as certain multinational managers eligible for an EB-1 green card case.

The EB-1 “multinational manager” petition avoids the labor certification process, and with the EB-1 category current, an I-140 Immigrant Visa petition and Adjustment of Status application can be filed at the same time.  This often results in the simultaneous adjudication of the I-140 petition and I-485 application, with a green card often being approved in less than one year.  EB-1 “multinational manager” cases are not without their own challenges though, and success depends on the strength of the record before the USCIS adjudicator.  While overseas, the typical EB-1 multinational manager:

  • Supervised and controlled the work of other supervisory, professional, or managerial employees;
  • Had the authority to hire and fire or recommend those actions as well as other personnel actions (such as promotion and leave authorization) and;
  • Exercised direction over the day-to-day operations of the activity for which the employee had authority.

The EB-2 and EB-3 candidate who anticipates a managerial role with their employer in the U.S. may be well served by harkening back to their overseas employment.  Did you manage other professionals before coming to the U.S.?  Were you involved in hiring and firing decisions?  Did you conduct performance reviews?

If you performed these managerial tasks, think about whether you will be able to provide a breakdown of your managerial duties and an organizational chart that includes the names and educational levels of those you managed.  A successful multinational manager case will also include independent evidence of your ability to make important personnel decisions such as:  performance appraisals prepared by you; leave, vacation or similar requests approved by you, and; any documentation regarding your authority to allocate funds or exercise budgetary discretion over matters/projects.

Until Congress steps in to improve the priority date situation, improvement is elusive, if not improbable.   Einstein aptly noted that, “Politics is a pendulum whose swings between anarchy and tyranny are fueled by perpetually rejuvenated illusions.”  Surely, Congress can improve the situation, but at this point mere hope fuels the monthly rejuvenated illusion that the visa cutoff dates will improve significantly with the next Visa Bulletin.

Frustrated EB-2 and EB-3 candidates still need to take their case to Congress for permanent and sustainable improvement to priority dates.  There is no regulatory provision, however, that prevents them from doing it with an EB-1 petition in the queue.

About Erik Anderson

Erik Anderson is a Partner at Goel & Anderson, where he directs the firm's Immigrant Visa Practice, overseeing the development of case strategies to address the recruitment and transfer of human resources in the United States and overseas. In this role he manages the visa and work permit needs of international professionals, managers, and executives. He also supervises the firm staff members who handle "green card" cases for employers across the country, particularly in the Information Technology, Biotech, Insurance, Healthcare, Food and Beverage, Media, and Entertainment industries. These include labor certifications, immigrant petitions, adjustment of status, and consular processing. Erik also directs the firm's individual and family-based immigration practice areas. Prior to entering private practice, Erik was appointed Deputy Secretary of the Board of Alien Labor Certification at the U.S. Department of Labor, and today he routinely handles matters before that agency, as well as United States Citizenship and Immigration Services, the U.S. Department of State, and nearly every state workforce agency in the United States.
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