You are on a tourist visa and a registered nurse from the Philippines and you just passed the NCLEX-RN exam. And assume your I-94 will expire on April 15, 2007 (sample date) - There is a hospital in California that is interested to sponsor you but you cannot file applications for adjustment of status and work authorization because of the retrogression.
Your question would be
Should I go home and just wait for interview in the Philippines or should I stay and take my chances here? Please advise me.
According to the January 2007 Visa Bulletin issued by the U.S. State Department, Schedule A Workers [i.e., registered nurses (RNs), physical therapists] will only be allowed to apply for lawful permanent resident (LPR) status if their priority date is earlier than June 15, 2004.
Generally, the priority date in an employment-based immigration case is the date when the labor certification application was filed. In the case of RNs, however, the priority date is the date when the employer filed the immigrant petition on behalf of the RN since RNs are exempt from the labor certification process.
Thus, based on the January 2007 Visa Bulletin, you will only be allowed to apply for LPR status if your priority date [or the date when the immigrant petition was filed on your behalf] is earlier than June 15, 2004. If your employer has not yet filed any petition on your behalf or your petition was filed on or after June 15, 2004, this means that you are not yet allowed to file applications for adjustment and work authorization. If you file applications for adjustment and work authorization even if your priority date is not yet current, the government will just reject your applications.
Can your employer file an immigrant petition on your behalf now? The answer is yes. A lot of employers actually still do file petitions on behalf of RNs. Why? So that they can reserve priority dates for their RNs.
Employers can still file immigrant petitions on behalf of RNs because the retrogression only affects the filing of applications for adjustment and work authorization. The RNs, however, who are here will not be able to work for their employers because of the retrogression and will have to decide whether to go home and wait for their visa interviews abroad or stay here and hope and pray that Congress will pass the law granting additional visa numbers for RNs soon so that they can file their applications for adjustment and work authorization.
If you do not want to become out-of-status, then you should go home on or before April 15, 2007, the expiration date of your I-94.
If you decide to stay after April 15, 2007 and take your chances here, you should be aware that you would become out-of-status beginning April 16, 2007 and therefore, deportable.
Generally, if you are already out-of-status, you are no longer allowed to adjust your status to that of an LPR. As an exception, however, please note that under Section 245(k) of the Immigration and Nationality Act, you will still be allowed to obtain LPR status if you can file your adjustment application within 180 calendar days from date your I-94 expired.
Thus, using Section 245(k) as part of your strategy will only work if two things occur:
1. Congress passes the law granting additional visa numbers to RNs at any time prior to the lapse of 180 calendar days from April 15, 2007; and
2. You are able to file your adjustment application at any time prior to the lapse of 180 calendar days from April 15, 2007.