EB-1 Green Cards Backlogged Worldwide
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
The Department of State (DOS) announced recently that the worldwide limits on the highest-preference green cards, EB-1s, were reached for the fiscal year.
The worldwide backlog for EB-1 visas is expected to continue through at least October and potentially into 2019. While the EB-1 backlog for Indian and Chinese nationals was already expected to last well beyond October, earlier comments from the DOS Visa Control and Reporting Division suggested that the EB-1 worldwide backlog was likely to clear in October with the arrival of the new fiscal year. However, USCIS is now creating demand for visas by prioritizing EB-1 green cards for in-person interviews, and the backlog is not expected to clear for several months.
The final action date for EB-1 worldwide (except for India and China) is expected to be cut off at or before September 30, 2018, and stay there through at least December. The final action date indicates the priority date at which new applications for permanent resident status will no longer be accepted and at which existing applications will cease to move forward through processing.
An October 2018 final action date would give petitioners who file their I-140s between now and the end of September an advantage—provided they are not Indian or Chinese nationals—because they would be able to proceed with filing their applications for permanent resident status if EB-1 does indeed move forward in the new fiscal year.
A number of factors appear to be influencing this ongoing backlog, including the requirement that all employment-based green card applicants must undergo a personal interview at the nearest USCIS District Office. As applicants queue up for interviews with no certain outcome, it muddies the waters by which the DOS judges visa availability for its monthly assessment.
The Visa Bulletin for September notes:
WORLDWIDE, EL SALVADOR, GUATEMALA, HONDURAS, MEXICO, AND PHILIPPINES EMPLOYMENT-BASED SECOND (E2), Third (E3), and Third Other Worker (EW) PREFERENCES: As readers were advised in item F of the July Visa Bulletin, there has been an extremely high rate of demand for Employment numbers, primarily for USCIS adjustment of status applicants as a result of the successful implementation of their new interview process. Therefore, pursuant to the Immigration and Nationality Act, it has been necessary to impose E2, E3, and EW Final Action Dates for the month of September with these dates being imposed immediately for new requests for visa numbers. This action will allow the Department to hold worldwide number use within the maximum allowed under the FY-2018 annual limits.
The implementation of the above mentioned dates will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.
Readers were also advised in item F of the July Visa Bulletin that some retrogression might occur prior to the end of the fiscal year. It has been necessary to retrogress the September Final Action Dates for the China Employment-based Second, and India Employment Second, Third, and Third Other Worker preferences in an effort to hold worldwide number use within the maximum allowed under their FY-2018 annual limits. This will only be temporary and in October, the first month of fiscal year 2019, the final action dates will be returned to those established for August.
The Visa Bulletin also provides the following information on potential monthly movement in the employment-based categories for the next few months:
WORLDWIDE (all countries): October Final Action Dates will be imposed for all countries. Limited, if any forward movement can be expected prior to December.
Worldwide: Current for the foreseeable future.
China: Slow movement pending receipt of demand from recent advances
India: Up to two weeks
China: Up to three weeks
India: Slow movement pending receipt of demand from recent advances
Employment Fourth: Current for most countries
El Salvador, Guatemala, and Honduras: Little, if any forward movement
Mexico: Up to three months
Employment Fifth: The category will remain “Current” for most countries
China-mainland born: Up to one week
Vietnam: Steady forward movement
The above final action date projections…indicate what is likely to happen on a monthly basis through January. The determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables.