Process Timing

Often immigrants considering EB3 for permanent migration to the United States are most concerned with timing: “How long will the process take?” There are several reasons to be concerned with timing, primarily in the case of dependents approaching the cut off age of 21 years old or the current status of your non-immigrant status to adjust to permanent residency. Even in cases where this is not an issue, timing matters, as most immigrants need to make substantial relocation plans based upon when their EB3 visa will be issued and where their job is located. In adjustment of status cases, timing is critical to determining whether the immigrant can remain in the U.S. while processing his case. The following are some general issues to think about when considering EB3 process timing.

First:

Should the immigrant consular process in their home country or adjust his status in the U.S.? Assuming the immigrant is legally in the U.S. on a valid non-immigrant visa, which qualifies him to adjust his status, he should consider adjustment of status. There is a substantial difference in the time it takes to process an EB3 application by way of adjustment of status rather than through consular processing. Because adjustment of status cases do not require National Visa Center (NVC) or consular processing, they generally take at least six fewer months to process than consular processed cases.

Second:

When should the immigrant sign up for EB3 visa processing? It is very difficult to find an EB3 Sponsor. Once an immigrant identifies a viable sponsor willing to pursue their application, they should not hesitate to sign up. Sponsors are difficult to find. There are reasons why sponsors come and go (U.S. job demand, unemployment rate, no additional need, etc.), so once the immigrant has identified a willing sponsor, it makes sense to begin the process as soon as possible.

Third:

Is there an advantage to starting as soon as possible? As with any immigration matter, the process can take time. For EB3 the process takes between 12-24 months. Once the immigrant has begun the process, he has joined the queue and in most cases any changes to immigration law after the immigrant has filed his application, will not apply. There are very few circumstances you can start too early but many situations when you can begin the process too late.

Fourth:

For adjustment of status cases, is timing important? Timing is most critical for adjustment of status cases. Essentially, the immigrant needs to file his I-485 adjustment of status petition prior to the expiration of his current non-immigrant visa. The I-485 cannot be filed until the I-140 is filed, which requires a valid Labor Certificate from the Department of Labor. The Labor Certificate process is unpredictable and can take as few as four months, depending on the circumstance. Ideally, the immigrant would maintain his current non-immigrant visa status throughout the process, in which case the immigrant should start the EB3 process with as many remaining available months on the current visa as possible. The ideal time to have your sponsoring employer file our Labor Cert is when you have at least 24 months remaining on your current visa.

With immigration, it is best to be conservative. When an immigrant finds a sponsor, he should file as soon as possible in order to 1) preserve the relationship with the Sponsor, 2) get in line, 3) establish legal rights; and 4) preserve the time left on the existing visa in adjustment of status cases. And, remember, timing can never be guaranteed in U.S. immigration visa processing – it can only be managed.

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