On Jul 17 2018 by Feige M. Grundman

Best, Brightest, and Backlogged

By Feige M. Grundman & Steven R. Miller

While many of President Trump’s immigration comments are misinformed, he is not wrong when he points out that the current system for giving permanent resident status (or “green cards”) on the basis of employment-related skills has not kept up with the needs of the US workforce. The number of green cards is capped every year, and these green cards are allocated by the Department of State (DOS) based on an individual’s country of birth as well as the priority category under which an individual applies. About 140,000 green cards are set aside for distribution among only five employment-based categories during each fiscal year (October 1 through September 30). No more than 7% of available green cards can be granted to applicants from any one country in the same category during the course of any given fiscal year.

The Employment-Based First Preference (EB-1) category is for the highest-skilled immigrants, and includes three sub-classifications: individuals who have extraordinary ability in the sciences, arts, education, business, and athletics; outstanding professors and researchers; and multinational executives and managers.

Beyond the bragging rights that come with being officially designated as extraordinary or outstanding, the EB-1 immigrant green card is one of the most coveted paths to permanent residency for a number of reasons. Most foreign nationals pursuing a green card will have to go through a three-step process that takes at least two years, and in some instances well over a decade. One of the primary draws for the EB-1 category is that for the world’s best and the brightest, getting a green card involves a two-step process – an immigrant petition and green card application. Historically, EB-1 beneficiaries could concurrently file an immigrant petition and green card application concurrently and expect to get a final decision on their case within a year, regardless of nationality. That is until recently.

On April 1, 2018, the EB-1 category for Indian and Chinese nationals retrogressed significantly, reflecting a backlog in available green cards that put a halt to the processing of any pending EB-1 green card applications with immigrant petitions filed after January 1, 2012. This also prevents the filing of any new applications for permanent residency by people born in China or India. Suddenly, for Indian and Chinese individuals with extraordinary abilities, there was a line, and a long one at that. While EB-1 for China and India has occasionally retrogressed for brief periods over the past several years, the depth of this year’s EB-1 backlog—and its occurrence so early in the fiscal year—reflected an unprecedented situation. The rumors for a worldwide retrogression came to fruition just last week with the release of the August Visa Bulletin. Indian and Chinese nationals by extraordinary and outstanding individuals from the rest of the world; As of August 1, immigration will only accept green card applications for individuals who had an immigrant petition filed on or before May 1, 2016.

With very few exceptions, EB-1 has remained current for applicants from all countries because of its exclusivity— “extraordinary” and “outstanding” are the hardest classifications to satisfy, and thus there are fewer people applying under that category. As the lines for EB-2 and EB-3 classifications for Indian and Chinese nationals kept getting longer, more people began exploring the EB-1 option for multinational executives and managers. The dramatic 2018 backlog signifies unprecedented EB-1 usage; within the first six months of the fiscal year, there were enough EB-1 green cards being processed and granted to Indian and Chinese nationals that the DOS slammed on the brakes in anticipation of meeting the per-country limit.

The prevailing assumption upon announcement of the impending retrogression was that the backlog would extend through to the end of the fiscal year (September 30), and that the new fiscal year would bring a fresh set of green cards and hopefully eliminate the EB-1 backlog.

But as spring became summer, the State Department’s Visa Control and Reporting Division revealed that the light at the end of the proverbial tunnel was growing dimmer and dimmer. Historically, retrogressions in EB-1 have come late in the fiscal year as available green cards dwindled, and then resumed currency come the new fiscal year on October 1. What the State Department has communicated so far, though, is that this unprecedentedly early imposition of such a drastic cutoff date has created a situation in which pent up demand from Indian and Chinese nationals who are unable to apply for permanent residency during the backlog could lead to a continued backlog past the start of the new fiscal year on October 1, 2018 and potentially into 2019. EB-1 hopefuls from the rest of the world will go back to a (relatively) short one-to-two year processing time, but the best and brightest from India and China will need to wait years.

While no pending green card applications will be processed during a backlog and no new applications can be submitted, the immigrant petitions for EB-1 classification can be filed. Since the EB-1 backlog is still significantly shorter than other categories, this means that EB-1 green card cases continue to queue up. And as immigrant petition approvals roll in, the line to wait for a green card just gets longer.

According to the State Department, a late 2017 shift in policy that now requires all employment-based green card applicants to undergo a personal interview at the nearest USCIS District Office has further hindered his ability to divine when EB-1 could become current again for India and China. Before this change to policy, the in-person interview was waived for employer-sponsored applicants unless their background check turned up anything of note or their application was randomly selected as a quality control test. With the variable of a personal interview for each and every applicant thrown into the mix, the math upon which the State Department bases its predictions has become further muddled, leaving green card hopefuls in limbo.

With a worldwide retrogression for EB-1 now a reality, what was once considered a (comparatively) fast-track to permanent residency is feeling more and more like the same long slog that applicants in lower preference categories have faced for years. While worldwide EB-1 retrogression should clear up at the end of the fiscal year, outstanding and extraordinary Indian and Chinese nationals will still be stuck standing in line.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the July 18, 2018 edition of the The Legal Intelligencer© 2018 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.