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Getting 'Round the Retrogression

by Carl Shusterman

This month, we received several questions from our subscribers regarding how to speed up their green card process despite the retrogression.

There is no "one size fits all" solution to this problem, but here are a few tips that I have learned over the past 30 years:

A. Alternate Chargeability - Whether you are immigrating through an employment-based or a family-based category, what determines how long it will take you to be able to apply for permanent residence often depends on your country of birth. And, of course, it is impossible to change your country of birth, or is it?

Example: Shah is a computer engineer who was born in India and educated in the United Kingdom where he is now a citizen. He is also a landed immigrant of Canada. Both his labor certification and his I-140, under the EB-2 category have been approved, and his priority date is January 4, 2004. The problem is that the EB-2 category has retrogressed beyond this date for persons whose country of chargeability is India.

Generally, a person's country of chargeability is the same as their country of birth, so the fact that Shah is a citizen of the U.K. and a landed immigrant of Canada is irrelevant.

However, section 202(b) of the Immigration and Nationality Act provides a limited number of exceptions to the general rule. Shah's fiancée was born in Sri Lanka, and she is present in the U.S. in H-1B status. If they marry, they can both use Sri Lanka as their country of chargeability, and they may immediately apply for adjustment of status!

B. Changing Categories - Persons are not restricted as to the number of relatives who may apply for permanent residence on their behalf. It is also possible to change categories to speed one's progress toward becoming a permanent resident. Example: Ramon was born in the Philippines. In 1986, his U.S. citizen sister submitted a visa petition on his behalf. In 1990, his mother achieved permanent residence and immediately filed a visa petition for Ramon. Ramon was told not to marry until after he became a permanent resident.

This, however, is a half-truth. If he marries while his mother is a permanent resident, her petition for him will die. However, if he marries after his mother naturalizes, her petition will automatically change from the F2B (single son of a permanent resident) to the F3 category (married son of a U.S. citizen), and Ramon will retain his original priority date!

Since F3 priority dates prior to 1991 are "current" for Filipinos, Ramon and his wife may immediately apply to adjust their status in the U.S.

C. Changing Employers - Labor certifications and PERM applications belong to the employer, not the employee. If an employee changes employment after his labor certification or PERM is filed, he is compelled to start the green card process from the beginning. This remains true even after the labor certification or PERM application is approved. However, what if an employee waits until both his labor certification or PERM application and an I-140 immigrant visa petition are approved on his behalf? Does he have to restart the process from the beginning? Not necessarily.

Example: Yougang is an MBA who was born in the PRC. He gained his MBA while he was working for Employer A. In 2004, Employer A submitted an application for a labor certification on Yougang's behalf. After it was approved, an I-140 was approved for him under the EB-3 category. He could not apply for permanent residence because his priority date was not current. He opted to take a higher-paying management job for another company through transferring his H-1B to Employer B.

Does Yougang have to restart the green card process and does he lose his 2004 priority date? Yes and no. Since the labor certification and I- 140 are employer-specific, he must restart the entire process of becoming a permanent resident. However, he may retain his 2004 priority date.

In 2006, Employer B submits a PERM application on his behalf and a couple months later, it is approved. Unfortunately, the priority date for the EB-2 category for persons born in the PRC has retrogressed into 2005. Fortunately, however, CIS regulations allow Yougang to recapture his 2004 EB-3 priority date and use it under the EB-2 category. This means that Yougang can immediately submit his application for adjustment of status simultaneously with his employer's I-140!

About The Author

Carl Shusterman is a native of Los Angeles and a 1973 graduate of the UCLA School of Law. He served as an attorney for the Los Angeles office of the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered the private practice of law. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals, Ninth Circuit and the Supreme Court of the United States. Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's national Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He serves as a member of the Immigration and Nationality Law Advisory Commission for the State Bar. He is a member of the Executive Committee of the Immigration Section of the Los Angeles County Bar Association and of the American Bar Association. Mr. Shusterman is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee On Immigration in Washington, D.C.

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