First Preference Employment Category (EB-1) Brings Unprecedented Backlogs

January 29, 2019

The U.S. Immigration and Nationality Act reserves a first preference employment-based immigrant visa category for foreign nationals who qualify as aliens of extraordinary ability, outstanding professors, researchers, multinational executives or managers. These individuals have historically benefited from a fast-track path to securing lawful permanent resident status in the United States, known colloquially as the EB-1 immigrant visa category.

These individuals are exempt from the prerequisite requirement that an employer file a labor certification application on their behalf to evidence that the U.S. labor market has been tested to assure that there are no qualified U.S. workers.

Procedurally, an immigrant petition for an EB-1 visa may be filed on their behalf by an employer, or they may self-petition in certain instances. Once the immigrant petition is approved, they are immediately eligible for U.S. permanent residence. Due to the difficulty in qualifying for the EB-1 category, there have traditionally been fewer applicants in this immigrant category than the number of available immigrant visas. However, as more individuals immigrate to the United States through legal means, case backlogs continue to grow and those who once enjoyed an expedited process to obtain permanent residence are faced with unprecedented wait times.

By statute, Congress has placed a limit on the number of immigrant visas issued per year based on country of birth as well as the employment-based category under which an individual applies.

A maximum of 140,000 green cards are set aside each year for distribution among the five employment-based immigrant visa categories. When the number of applicants in a given category and country of origin exceed the number of immigrant visas available in any fiscal year, a backlog (or retrogression) occurs. Only those individuals with a priority date earlier than the cut-off date indicated on the Department of State’s monthly bulletin are eligible for U.S. permanent residence.

While those with approved I-140 Immigrant Petitions are still eligible to avoid the labor market test, the fast-track path to obtaining permanent residence has been altered in a significant way. First, in April 2018, the EB-1 category retrogressed for Indian and Chinese nationals. Then, in August 2018, the EB-1 category retrogressed for all applicants worldwide and remains retrogressed to date.

There could be many reasons why this backlog has occurred, but first and foremost, there are more applicants now than in the past. In addition, USCIS has recently introduced changes that have slowed down the process further. These include a new in-person interview requirement for all employment-based green card applicants and new medical exam requirements.

At a minimum, the unprecedented backlog in the EB-1 category means that applicants have to wait longer than expected to obtain lawful permanent residence. The latest U.S. Department of State Visa Bulletin cutoff date for Chinese and Indian nationals was October 1, 2018 and only applicants with 'priority dates' (filing dates prior to October 1, 2018) are eligible for issuance of U.S. permanent residence. For individuals from all other chargeability countries, the cutoff date was June 1, 2018.

Although the U.S. Department of State’s projections continue to change, the latest guidance indicates that the current backlog may end within the next several months, at least for individuals from countries other than India and China. However, if the number of petitions in the employment-based first preference category continues to rise, longer wait times for all might be the new normal.

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