EB3 Unavailability : Common Misunderstandings and Clarifications
Posted Jun 24, 2005
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At The Law Office of Sheela Murthy, we have been receiving many questions about the impact of Employment-Based 3rd Preference (EB3) unavailability. We have identified a few common misunderstandings to clarify for our readers. Anyone unfamiliar with this topic should review our June 17, 2005 MurthyBulletin article, EB3 Numbers Unavailable from July 1, 2005 Except for Schedule A Workers, available on MurthyDotCom. 
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Misunderstanding 1 : All EB3 visa numbers will become current on October 1, 2005.
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Whether or not all EB3s will become current on October 1, 2005 is unknown at this time. What is known is that, as of July 1, 2005, there are no EB3 visa numbers except Schedule A numbers for nurses and physical therapists. The U.S. Department of State (DOS) Visa Bulletin advised that no more visa numbers will be available for the remainder of FY2005 in this EB category. The next fiscal year begins on October 1, 2005. At that time, a portion of the allotment for FY2005 will become available.
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This means that some visa numbers will be available on October 1, 2005. There may or may not be enough visa numbers or everyone. If there are not enough for all potentially eligible EB3 cases, then the DOS will establish a cut-off date. This cut-off date, which is what is in place for the remainder of June 2005, indicates that there are only enough visa numbers for people who have priority dates earlier than the cut-off date. This establishes that only the people with priority dates before the cut-off date will be able to file their I-485s or complete their consular processing for immigrant visas abroad. It also means that only those pending I-485 cases with priority dates before the cut-off date can be approved.
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Unless the DOS issues an earlier prediction on this issue, what the Visa Bulletin will reflect for the EB3 category starting from October 1, 2005 will not be known until sometime in the middle of September 2005. Visa Bulletins are generally issued about 15 days in advance. This is why the Visa Bulletin for July 2005 became available in mid-June 2005. The same thing should happen in mid-September 2005 for the October 2005 bulletin.
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Misunderstanding 2 : When the visa number is available, my case will get approved!
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Once a visa number becomes available for someone, only then may the I-485 for that person be approved. The I-485s are still subject to processing times and processing requirements, however, such as fingerprinting, security checks, and review by the adjudicator. The same is true of appointments at the consulate. The cases could be scheduled for the consular interview, but there are procedures that occur and general waiting times prior to scheduling the immigrant visa interview. Therefore, even if a visa number is available for a particular case on October 1, 2005, the case may or may not be ready for a final decision for a few more months, in many instances.
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In view of this uncertainty, as well as the uncertainty discussed in Misunderstanding #1, people with I-485s pending should continue to extend their Employment Authorization Documents (EADs) and Advance Paroles (APs) if they intend to rely upon those documents for work and travel. If the EAD or AP is expiring in October or November, they should presume neither that the green card will be in hand by that time nor that EAD / AP extensions are unnecessary. To err on the side of caution, it is better to file the EAD or AP extension, than to find out that one cannot work for two or three months and could, possibly, even lose one's job.
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The same holds true of extensions of H1B/H-4 and L-1/L-2 statuses while the I-485s are pending. These extensions should continue to be filed, since there is no guarantee of a green card approval in any particular case on a specific date soon after one's priority dates become current.
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Misunderstanding 3 : The solution is to request an immediate consular appointment.
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If an individual in EB3 has a consular appointment in June 2005, then the case potentially could be approved. It would be necessary for the person's priority date to be prior to the cut-off date in the June Visa Bulletin if s/he is from India, the Philippines, or mainland China. For all other countries, the priority dates are current for EB3s in June 2005. Consulates, however, schedule immigrant visa appointments in advance. For example, the consulate in Chennai, India issues the appointment schedule on the 10^th of each month for the following month. Therefore, the consulate in Chennai announced immigrant visa appointments for July 2005 on June 10, 2005. June's immigrant visa appointments were scheduled in early May. While consulates sometimes accommodate special, emergency requests in individual cases, given the enormous numbers of people impacted by the EB3 unavailability, it would be highly unlikely that any particular consulate would be receptive to such a request. Moreover, consulates generally receive allocations of visa numbers for each month. For this reason, they may not be able to accommodate requests beyond what is already scheduled, considering their other workload considerations and personnel resources.
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Conclusion
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We understand that retrogression and visa unavailability is both confusing and stressful for most people. At The Law Office of Sheela Murthy, we will continue to guide MurthyDotCom and MurthyBulletin readers with timely updates and clarifications.