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Blackout In The EB-3 Preference Category

by Cyrus D. Mehta

The Department of State (DOS) announced that the Employment-Based Third Preference (EB-3) category for “skilled” and “professional” workers will become unavailable from July 1, 2005 until September 30, 2005. The employment-based third preference covers jobs that require either a baccalaureate degree (professional) or two or more years of experience (skilled).

The unskilled category within the EB-3 category has also became unavailable effective June 1, 2005. Prior to this, the cut-off date was January 1, 1999.

The reason for this development is that the US Citizenship and Immigration Services (USCIS) has been processing adjustment of status applications at a rapid pace, resulting in a demand for immigrant visas that far outstrip the annual availability.

EB-3 applicants who have already filed an application for adjustment of status will be able to continue to derive benefits of a pending application such as obtaining employment authorization documents (EAD) or permission to travel overseas (Advance Parole). At present, the cut-off date for the EB-3 category for India, Mexico and The Philippines is June 1, 2002. For the rest of the world, there is no cut-off date and the category is still “current.” Unfortunately, this will last only until June 30, 2005. From July 1, 2005 onwards the entire EB-3 category will become unavailable.

Therefore, those whose labor certifications are approved can still file an adjustment of status application if the application is received by June 30, 2005 at the appropriate service center. If the applicant was born in India, Mexico or The Philippines, the application for adjustment of status can only be filed if the approved labor certification was filed on or before June 1, 2002. Even if the adjustment application has been filed, no application will be approved so long as the visa numbers remain unavailable.

The DOS bulletin explicitly states:
“With the start of the new fiscal year in October, numbers will once again become available in these categories. It is not possible to make any estimates regarding potential cut-off dates at this time.”

It still remains to be seen whether Section 502 of the REAL ID Act of 2005, which provides for the recapture of the 50,000 employment-based immigrant visa numbers during the fiscal year 2001 to 2005 for Schedule A immigrants, will have a beneficial impact on the EB-3 category by diverting away applicants to the new 50,000 bank who would have otherwise used the regular EB-3 numbers. Schedule A immigrants are nurses, physical therapists and performing artists of exceptional ability. The DOS July 2005 visa bulletin has created a special category for Schedule A workers. This category is current presently.

This article originally appeared on

About The Author

Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, practices immigration law in New York City and is the managing member of Cyrus D. Mehta & Associates, P.L.L.C. He is the Chair of the Board of Trustees of the American Immigration Law Foundation (AILF) and recipient of the 1997 Joseph Minsky Young Lawyers Award. He is also Secretary of the Association of the Bar of the City of New York (ABCNY) and former Chair of the Committee on Immigration and Nationality Law of the same Association. The views expressed in this article do not necessarily represent the views of ABCNY or AILF. He frequently lectures on various immigration subjects at legal seminars, workshops and universities and may be contacted in New York at 212-425-0555.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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