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'Safe Harbors' In The Retrogressed Employment-Based Preferences

by Cyrus D. Mehta

The visa bulletin for February 2006 indicates substantial movement in the employment-based immigrant visa preferences. With respect to the Employment-Based First Preference (EB-1), the priority date for India is February 1, 2004 and for China is January 1, 2003, while it continues to remain current for the rest of the world. Regarding the Employment-Based Second Preference (EB-2), the priority date for India is August 2, 2001 and for China is April 1, 2002 and the rest of the world continues to be current. There has also been significant progress in the Employment-Based Third Preference (EB-3). The worldwide priority date has now moved to April 22, 2001 (including China) while for India it has moved to January 1, 2000. Mexico is at March 15, 2001 and Philippines, April 22, 2001.

Despite this progress, the prognosis for the latter part of the Fiscal Year 2006 is not good. It is expected that there will not be any movement after April 2006. In fact, some project further retrogression in the EB-3 category. Also, the EB-2 preference category for the rest of the world may retrogress after April 2006.

The only way for relief is if Congress passes legislation that would increase the immigrant visa numbers in the backlogged preferences. Unfortunately, in December 2005, Congress did not include in the Deficit Omnibus Reconciliation Act the ameliorative employment-based related provisions that were initially overwhelmingly approved by the Senate. It is hoped that future legislation will address the issue.

In the meantime, here are a few more suggestions to improve an individual’s odds in the backlog (see The Benefits of Priority Date Retention During Retrogression).

Cross chargeability

Immigrant visa applicants are charged to the country of their birth regardless of their nationality. INA § 202(b). Thus, an individual born in India will still be charged to India even though this person may have become a citizen of Canada. It is possible, though to cross charge to a spouse’s country of birth. 22 C.F.R. § 41.12(i). Therefore, a person born in India who is married to a person from Canada can cross charge to Canada instead of India.

Moreover, under certain conditions, a person born in India but whose parents were neither citizens or residents of India at the time of the child’s birth can cross charge to the country of birth of the parents. 22 C.F.R. § 42.12(e). This would be applicable to children of missionaries or refugees who were not citizens of the country where the child was born.

Schedule A Group II

If an individual qualifies under the Person of Extraordinary Ability category (EB-1), which is presently backlogged for India and China, this person may wish to consider filing under Schedule A Group II. The Real ID Act introduced 50,000 additional visas into Schedule A occupations, and the Schedule A category is thus presently current for all countries. The criteria to establish exceptionality ability in the sciences or arts is set forth in the Department of Labor regulations, 20 C.F.R. § 656.15(d), similar to the regulatory criteria for extraordinary ability. There also exist similar criteria in Schedule A, Group II, with regards to aliens who wish to establish exceptional ability in the performing arts. Under Schedule A Group II, an employer is required to be the sponsor of the petition, and it is also necessary for the employer to first obtain the prevailing wage and post notice of the job opportunity at the work place. The employer must also complete the labor certification application without recruitment and attach it to the employment-based preference petition (Form I-140).

Using Exceptional Ability Under EB-2

INA § 203(b)(2) defines the EB-2 category to include “members of the professions holding advanced degrees or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.”

Interestingly, this provision permits an individual to qualify for EB-2 either by establishing an “advanced degree or equivalent” or by establishing “exceptional ability in sciences, arts, or business.” Therefore, even if the position inn the labor certification application requires only a bachelor’s degree, it might be worth trying to qualify the alien under the “exceptional ability” prong of the EB-2 statute.

8 C.F.R. § 204.5(k)(3) provides that a person can qualify under exceptional ability in the sciences, arts or business by documenting at least three of the following:

  • An official academic record showing that the alien has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area of exceptional ability.

  • Evidence in the form of letter(s) from current or former employer(s) showing that the alien has at least ten yeas of full-time experience in the occupation for which he or she is being sought;

  • A license to practice the profession or certification for a particular profession or occupation;

  • Evidence that the alien has commanded a salary, or other remuneration for services, which demonstrates exceptional ability;

  • Evidence of membership in professional associations; or

  • Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations.

This approach was suggested at the AILA-NY Chapter meeting on January 9, 2006, although no one on the panel or in the audience indicated that they had attempted it as yet. Suppose a labor certification was approved for a Food & Beverage Manager from India requiring a bachelor’s degree and two years’ experience. This individual facially can only qualify under EB-3. But if this person can demonstrate “exceptional ability” pursuant to 8 C.F.R. § 204.5(k)(3), he/she may be able to qualify under EB-2. It remains to be seen whether the USCIS will accept this argument.

This article originally appeared on

About The Author

Cyrus 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 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 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.