EB-1 Backlogs: The New Reality
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As mentioned in our December Visa Bulletin post, the employment-based first preference (EB-1) category remains backlogged for all countries. Despite previous expectations, it appears that the backlog is here to stay. The Department of State’s Charlie Oppenheim recently told the American Immigration Lawyers Association (AILA) that the Final Action dates for the EB-1 category would reach June 1, 2018 (for all countries except China and India) within the next eight to twelve months. If this prediction proves true, the EB-1 category will never become current this fiscal year. Such a prolonged backlog is not only unprecedented, but alarming, as the employment-based second and third preference categories (EB-2 and EB-3) are current (for all but those born in China, India or the Philippines). This means that a foreign born Nobel Prize winning scientist or a chief executive at a multinational corporation will now wait years to receive a green card, while an entry-level worker could receive a green card much sooner.

The main culprit for such a lengthy backlog in the EB-1 category appears to be higher than usual demand in the employment-based fourth and fifth preference categories (EB-4 and EB-5). In the past, both the EB-4 and EB-5 categories rarely met their congressionally mandated limits and the extra visa numbers “spilled over” to the EB-1 category. This year, the EB-4 subcategories of Religious Workers and Special Immigrant Juveniles, as well as EB-5 investors, are all exceeding supply. In addition, there is increased usage of the EB-1 multinational executive/manager subcategory as many seek to avoid the traditional backlogs of the EB-2 and EB-3 categories. Overall demand for immigrant visas has also increased as growing uncertainty over changing immigration policies has led many to seek permanent residence while they still can.

In practice, the EB-1 backlog means that those that qualify for the category (Aliens of Extraordinary Ability, Outstanding Professors/Researchers and Multinational Executives/Managers) will not be able to submit applications for the last step of the green card process, the I-485 application to adjust status, until their priority date becomes current. In addition, they and their family members, will not be able to take advantage of the concurrent applications for employment and travel authorization. Because of these new delays, anyone wishing to apply in the EB-1 category should lock in their priority date as soon as possible by submitting a stand-alone I-140 immigrant petition to the US Citizenship and Immigration Services. In certain situations, other avenues for obtaining permanent residence may be more attractive, such as filing a PERM application or an EB-2 National Interest Waiver petition. For assistance with these issues, contact a Hunton Andrews Kurth immigration attorney.


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