Avoiding or minimizing quota delays for Employment Based Immigration (EB-2 and EB-3)

For our clients born in China and India, a large source of delay is quota backlogs. There are several opportunities to minimize the quota backlogs, or even to avoid them altogether.

There is a worldwide quota of employment-based immigrants, and there is also a per-country quota. For the past several years, only China and India have exceeded the U.S. immigration quota for skilled workers.

A person may be a citizen of several countries, but everyone only has one country of birth. To keep it simple, the immigration laws provide for administration of the quota system on the basis of the country of birth, not citizenship or nationality. For example, a person may be an Indian citizen who lived most of her life in India, but if she were born in London she would not be subject to the Indian quota. Conversely, a person who is a citizen of the United Kingdom and who lived in London since infancy, would be subject to the India quota if she were born in India (even if the birth took place during a short business trip by her parents). So regardless of the circumstances of how a person came to be born in a certain place, and regardless of where that person lived subsequently, the place of birth will determine the applicability of the per-country quota. (There is an exception if neither parent was a resident of the country, and the mother just happened to be visiting the country when the baby was born).

A person who is born in China or India, but whose spouse was born in some other country, is not subject to the China or India quota. That is true even if the spouse born in China or India is the one applying for the immigrant visa based on his or her employment. Also, it does not matter when the marriage takes place (as long as it is a bona fide marriage). For example, a person who is subject to the China quota can marry a person born in Hong Kong and escape the quota completely.

Those born in China and India in the EB-3 category must wait longer than those in the EB-2 category. A labor certification applicant from those countries therefore should try to get into the EB-2 category if at all possible. For employees who face the limit of six years in H-1B status, attaining EB-2 status could provide the only means for continuing to work in the United States. [2007 update: Expiration of the H-1B status is no longer the great concern it once was because of the AC 21 provisions]
The EB-2 category is reserved for those who have a Master’s degree or "equivalent." EB-3 is for everyone else. An INS regulation2 provides that a Bachelor’s degree plus five years experience is "equivalent" to a Master’s degree for purposes of EB-2 classification:

"A United States baccalaureate degree or a foreign equivalent degree followed by at least five years of progressive experience in the specialty shall be considered the equivalent of a master’s degree."

Another INS regulation3 provides that the labor certification must indicate that the job requires either the advanced degree (Master’s) or its equivalent (Bachelor’s degree + five years of experience).

So inclusion in the EB-2 category requires 1) that the applicant have a Master’s degree, or a Bachelor’s degree and five years of experience; and 2) that the job requires a Master’s degree, or a Bachelor’s degree and five years of experience.

1 A determination by the U.S. Department of Labor that there is a shortage of American workers who are available for the job held by the applicant. Right now it is generally recognized that there is a shortage of professional employees for most technology, scientific and software industries.

2 8 CFR § 204.5(k)(2)

3 8 CFR § 204.5(k)(4).

* The purpose of this newsletter is to inform potential clients of the type of legal issues our firm handles. It is not intended to establish any attorney/client relationship, and we accept no responsibility for the accuracy of the information provided. We cannot discuss or clarify any of the information contained in our newsletters, except with our existing clients.