A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, September 17, 2018

Strategies Dealing with EB-1 Retrogression

The recent visa bulletin retrogression in the Employment First Preference (EB-1) visa category has disrupted  the plans of many intending immigrants.  Historically the EB-1 visa category is usually current, meaning that an applicant does not need to wait for an available visa number to get a green card.  However, this advantage has reversed recently. For example, in September's Visa Bulletin, there are cutoff dates for all countries in the EB-1 category.  Most countries have retrogressed to 2016 while China and India have gone back to 01/01/2012.  

The EB-1 visa category was created for "priority workers" as a shortcut to obtain the U.S. permanent resident status. EB-1 priority workers include foreigners with extraordinary ability, outstanding professors and researchers, and multinational executives and managers.  

EB-1 visa applicants should adjust their plans accordingly in light of the recent visa retrogression.

The Visa Office has predicted that EB-1 will not likely to return to current status until at least December 2018 or even 2019.  Hence, for those visa applicants who are in the U.S., they must maintain their status while waiting for their priority dates to be current.  Normally, when a visa applicant's priority date is current, he may file the I-140 visa application concurrently with the I-485 application to adjust status.  A person with a pending I-485 application is allowed to remain in the U.S.

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The current immigration policy does not allow filing of the I-485 adjustment application unless there is a current priority date.  (Note: Surprisingly, USCIS has indicated that I-485 applicants may follow the Filing Date Chart in October.)  Hence, an EB-1 visa applicant must seek other avenues to stay in the U.S. during retrogression. For extraordinary ability applicants, the O visa status is a logical choice. For multinational managers, they may apply for the parallel nonimmigrant L-1A visa.  The H-1B temporary work visa is another possibility.  For short term stay, one may also consider the B1/B2 visitor visa.

An applicant should depart the U.S. if there is no viable way to stay.  Staying in the U.S. without legal status could have serious consequences including being banned from returning to the U.S. for a period of time.  There is some legal relief for employment based applicants if their lapse of status is less than 6 months but the best strategy is to avoid any unlawful status altogether.

Even being outside of the U.S. one may continue with the immigrant visa application process.  For example, he may respond to a formal Request for Evidence from USCIS while abroad. After the I-140 visa petition has been approved and when the priority date becomes current, the visa applicant will be able to apply for an immigrant visa from an American Embassy to return to the U.S.

In the newly-released October's Visa Bulletin, the Employment Second Preference (EB-2) is actually back to current for most countries except India and China.  Hence, eligible applicants may also consider filing a petition under the EB-2 category.  For example, an EB-1 extraordinary ability applicant may also file an EB-2 petition with a request for a national interview waiver (NIW).

Timing is another critical issue to consider.  For example, premium processing service is still available to L-1A multinational manager petitions, allowing these applicants to extend their nonimmigrant status quickly.   However, premium processing service has been suspended for most H-1B petitions.  Still there are automatic extension rules that allow certain H-1B workers to continue working in the U.S. once an extension or change of employer petition has been filed.   Similarly, when a foreign  applicant submits a non-frivolousness application to change or extend his nonimmigrant status in stay in the U.S., he is generally allowed to remain in the U.S. until a decision is issued.  The application must be properly filed with all required documents before his current status expires.

Even if an EB-1 visa applicant already has an I-485 application pending, it is still a good idea for him to maintain his nonimmigrant status such as L-1A, H-1B, O, etc.   If the adjustment application is denied for whatever reasons, he would still have an nonimmigrant status to fall back on.  While premium processing is available to most I-140 petitions, it is is not available to the EB-1C multinational managers petitions and the regular processing time now is up to about one year.  Hence, one should carefully plan and time his applications.

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