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Immigration Alert: EB-1 Immigrant Visa Backlogs and Potential Impact

The U.S. Department of State (DOS) recently released the January 2019 Visa Bulletin. The employment-based first preference (EB-1) category, reserved for multinational executives and managers, individuals of extraordinary ability, and outstanding researchers, remains backlogged for all countries.

This Immigration Alert will discuss the background and potential impact of EB-1 retrogression, as well as possible alternate strategies for employers and foreign national employees.

Background: What is Immigrant Visa Retrogression?

Each year, by law, 140,000 employment-based immigrant visas (green cards) may be issued to qualified applicants. The visas are distributed among five employment-based (EB) preference categories and then allocated by country of birth according to Congressionally-mandated per country quotas. The EB preference categories are summarized in the monthly Visa Bulletin. Visa retrogression occurs when the number of individuals seeking a green card exceeds the number of visas available in the applicable EB preference category and specific country of birth.  A “cut-off date” is then set and published in the Visa Bulletin. A queue to apply for the green card ensues and a foreign national is assigned a place in line based on his/her priority date.

For employment-based immigrants, the priority date is determined by the date that a PERM labor certification application is filed with the U.S. Department of Labor (DOL) for the sponsored foreign national employee.  In instances where a PERM labor certification is not required (e.g., for EB-1 petitions and EB-2 National Interest Waiver petitions), the priority date is determined by the date that an I-140 immigrant petition is filed with U.S. Citizenship and Immigration Services (USCIS).  In order for a foreign national to apply for a green card, his/her priority date must be available or “current” on the monthly DOS Visa Bulletin.  An immigrant visa number is only available when the priority date is earlier than the cut-off date shown on the Visa Bulletin for the applicable EB preference category and country of birth.

Historically visa retrogression has been severe for foreign nationals born in China and India, particularly in the EB-2 and EB-3 preference categories and the result has been a multi-year wait to file green card applications.  More recently, retrogression has impacted foreign nationals from every country who fall within the EB-1 category.  While the EB-1 category has experienced retrogression for short periods in the past, it has not been prolonged, and typically has only occurred at the end of the fiscal year, as the supply of immigrant visas for that year was depleted.

What is the EB-1 Retrogression Forecast and What Does it Mean for Foreign Nationals?

Possible Alternative Strategies for Employers and Foreign National Employees

Looking Ahead

Under the current Administration, it is unlikely that Congress will act to increase the statutory limit of 140,000 employment-based immigrant visas that may be issued each year. Therefore, it is expected that visa retrogression will continue to complicate both nonimmigrant and immigrant visa strategies and workforce planning for employers for the foreseeable future.  We encourage employers to work with their designated Gibney representative to troubleshoot and explore the full range of immigrant and nonimmigrant visa options in an effort to avoid interruptions in U.S. work authorization for valued foreign national employees.

For more information on immigrant visa availability, priority dates, and retrogression, please visit the USCIS website here.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.