Breaking News - All EB1 and EB2 FY visas used up as of 09/06/2022

It has been confirmed that all employment-based visas for the First and Second Preference (EB1 and EB2) categories have been exhausted as of 09/06/2022 for this fiscal year.  Visa numbers have been used up not just for India, but for all countries.

Where is the source of this information?  It came from a Declaration by Andrew Parker, Branch Chief of the Residence and Admissibility Branch (RAB) of USCIS. The Declaration was filed with a Federal District Court in Seattle, Washington on 09/06/2022. According to Mr. Parker: 

"USCIS notes that as of September 6, 2022, there are no visas remaining for applicants from any country of chargeability in EB1 or EB2. Applicants chargeable to India in the EB2 category received at least 2,786 visas between September 1, 2022, and September 6, 2022. "

The Declaration was filed under oath as part of an ongoing litigation in a case filed by Pritish Madhavan and other plaintiffs against USCIS and DOS.  Hence, its information is inherently reliable. 

Our office has also received other anecdote accounts and case information from different sources confirming the truth of this development.  It should not come as a surprise, as the State Department has already predicted it's happening in the September Visa Bulletin.

Still, it is unfortunate for those applicants who have missed the boat, some of them have been waiting for many years for their green card.  The silver lining is that they should be in line for the new batch of visa numbers to be issued in the next fiscal year, starting on October 1st.  We hope that they will receive their green cards very soon.

(Immigration laws and policies change regularly.  If you have any questions regarding this article, please visit www.1visa1.com to schedule a legal consultation.)  

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.

Comparable Evidence Standard for EB1 Outstanding Professors and Researchers Adopted

The DHS has finalized new regulations to improve several nonimmigrant visa programs as well as the EB-1B Outstanding Professors and Researchers immigrant program. This final rule, entitled: "Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants" will go into effect on February 16, 2016.

EB-1 Outstanding Professors and Researchers

Foreigners who can establish that they are outstanding professors or researchers may apply for permanent residence (green card) in the United States.  It generally requires at least three years of relevant experience and a tenure track or comparable job offer by a U.S. educational institution or private company. (To petition for an outstanding researcher, a private employer must show documented accomplishments and that it employs at least 3 full-time researchers.)  No labor certification is required. 

Further, applicants must submit evidence to prove that they are recognized internationally as outstanding in the academic field specified. Specifically the regulation requires that they must submit evidence to meet at least two of the following six criteria:

(A) Documentation of the alien's receipt of major prizes or awards for outstanding achievement in the academic field;

(B) Documentation of the alien's membership in associations in the academic field which require outstanding achievements of their members;

(C) Published material in professional publications written by others about the alien's work in the academic field. Such material shall include the title, date, and author of the material, and any necessary translation;

(D) Evidence of the alien's participation, either individually or on a panel, as the judge of the work of others in the same or an allied academic field;

(E) Evidence of the alien's original scientific or scholarly research contributions to the academic field; or

(F) Evidence of the alien's authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;

The new regulation for outstanding professors and researchers accepts other types of evidence that are comparable to the above-listed ones.  For examples, the applicant may now submit important patents or prestigious peer-reviewed funding grants to prove international recognition.  This modification is good news for professors and researchers who would like to apply for a green card under the EB-1 category.  It provides alternative ways for them to prove their case when the primary evidence is not available.  

Improvements in the Singapore, Chile (H-1B1), Australia (E-3) and CNMI  CW-1 Programs

H-1B1 and principal E-3 nonimmigrants will now be allowed to work for the sponsoring employer without first applying for an employment authorization document (EAD).  Further, these foreign workers may continue employment with the same employer for up to 240 days if an extension of stay petition has been timely filed by their employers.   

Similarly, CW-1 nonimmigrants will enjoy the same continued employment authorization after the expiration of their current status, as long as their employers' timely-filed request for an extension of stay remains pending.

Finally, the new rule has also included the principal E-3 and H-1B1 nonimmigrant classifications in the existing regulations regarding the filing procedures for extensions of stay and change of status requests.