1. The
Form I-140
Petition in EB-2 Immigrant Category
The major advantage of filing form I-140
petition in EB-2 immigrant category may be to get the Green Card faster than the
EB-3 category, because of more immigration visa number available in EB-2 than in
EB-3 category, in most situation. In the employment-based immigration, the
interest in the EB-2 based I-140 petition has substantially increased, and there
are a few things which the EB-2 aspirants must bear in mind before one considers
this option.
In
the labor certification application, employer must require either a master's
degree or equivalent, or alternatively a bachelor's degree with 5 years of
progressive experience. In the labor certification application,
"equivalent" means an equivalent "foreign degree." Thus,
unless the alien proves that he/she has a master's degree from a U.S.
institution or equivalent degree from a foreign academic institution, he/she
will not be able to file EB-2 I-140 petition.
If
the employer required a bachelor's degree or equivalent plus 5 years of
progressive experience as an alternative to a master's degree requirement,
the requirement of "a bachelor's degree or equivalent" can be
proven only if he/she attained a "single" bachelor's degree either
from a U.S. academic institution or a foreign academic institution.
2.
The H-1B Extension and the Form I-140 petition
Most of the employment-based immigrants in the categories of EB-3 and higher
up are working on H-1B nonimmigrant status, and in an effort to deal with
their nonimmigrant status and employment authorization during the period
when their immigrant visa numbers are unavailable, people should know what
options they would have to extend their H-1B status beyond six years.
The
form I-140 petition will not only affect the green card process, but will
also change how those seeking extensions of H-1B visa beyond the normal
six-year limit. Eligibility for H-1B visa extensions requires the filing of
an employment-based form I-140 immigrant visa petition at least 365 days
prior to the H-1B extension request, to take advantage of the extensions
beyond the six years.
When
people talk about the H-1B extension beyond six year limit, they often call
it "7th Year Extension" and extension in one-year increment
pending labor certification application for 365 days. However, this one-year
increment extension benefit can be sought only by those who are not eligible
for extension of H-1B beyond six years in "three-year" increment. The
three-year increment H-1B extension is available to those whose I-140
petition has been approved, but who cannot complete the green card process
because of the visa number unavailability.
3. The Premium Processing Service of Form I-140 Petition
U.S.
Citizenship and Immigration Services (USCIS) has started the form I-140
petition Premium Processing Service, which allows U.S. employers to pay a
$1,000 Premium Processing fee in exchange for 15-calendar-day processing of
their case.
USCIS accepts Premium Processing requests for
form I-140 petitions involving one of two employment-based immigration categories
within the employment-based preference. Those categories are:
1)
EB-3
Professionals, i.e. immigrant workers with bachelor degrees who are
members of the professions, and
2)
EB-3
Skilled Workers, i.e. immigrant workers capable of performing skilled
labor requiring at least two years of education, training or
experience.
USCIS is limiting Premium Processing
Service for Form I-140 petitions that are filed on behalf of aliens:
-
Whose sixth year will end within
60 days;
-
Who are only eligible for a
further extension of H-1B nonimmigrant status under section 104(c) of the
American Competitiveness in the Twenty-first Century Act of 2000 (AC-21);
and
-
Who are ineligible to extend
their H-1B status under section 106(a) of AC21.
Section 104(c) of AC-21 permits
applicants to extend their stay in H-1B nonimmigrant status in increments of up
to three years, provided they are the beneficiary of an approved Form I-140 and
an immigrant visa is not immediately available. Section 106(a) of AC-21 permits
applicants to extend their stay in H-1B nonimmigrant status in increments of up
to one year, provided the Form I-140 petition or underlying labor certification
has been pending for at least 365 days.
Employers
file for both categories using Form I-140 - Immigrant Petition for Alien Worker. Premium Processing is not available to “other workers” in the
EB-3 category for jobs that do not require two years of education, training
or experience.
Under
the Premium Processing Service, USCIS guarantees petitioners that, for a
$1,000 processing fee, it will issue either an approval notice, or where
appropriate, a notice of intent to deny, a Request For Evidence (RFE), or
open an investigation for fraud or misrepresentation, within 15 calendar
days of receipt.
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