On Aug 10 2018

CLIENT ALERT: EB-1 Green Cards for the Best And Brightest Are Now Backlogged Worldwide

by: Feige M. Grundman and Steve R. Miller

Earlier this month, the Department of State announced that the worldwide limits on the highest-preference green cards, called EB-1s, was reached for the fiscal year. 

On Wednesday, August 9, the U.S. Department of State (DOS) released its Visa Bulletin for September 2018, revealing that the worldwide backlog for EB-1 visas will likely continue through at least October and possibly into December 2018 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. USCIS is now creating enough demand for visas by prioritizing EB-1 green cards for in-person interviews that the backlog will not clear at the start of the new fiscal year.

According to the September 2018 Visa Bulletin’s notes on visa availability in the coming months, “October Final Action Dates will be imposed [on EB-1] for all countries. Limited, if any forward movement can be expected prior to December.” We interpret this statement to mean that, beginning in October, the final action date for EB-1 worldwide (except for India and China) will be cut off at or prior to September 30, 2018, and stay there through at least December. The September 2018 Visa Bulletin can be accessed here.

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. If you hold a priority date of June 12, 2014, for example, you cannot file an application for adjustment of status if the Final Action Date for your preference category is at June 8, 2014. If you filed your application for adjustment of status together with your I-140, and your preference category backlogs to a date prior to June 12, 2014, your permanent residency application will be put on hold. Note that processing of I-140s continues independent of visa availability.

An October 2018 final action date would give petitioners that file their I-140 between now and the end of September an advantage—provided they are not Indian or Chinese nationals—as they would be able to proceed with filing their application for permanent resident status if EB-1 does indeed move forward come the new fiscal year.    

There are likely a number of factors influencing this ongoing backlog, not the least of which is 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 of no certain outcome, it muddies the waters by which the DOS judges visa availability for its monthly assessment. We will monitor this situation as it develops.

Please contact your Klasko Law attorney with any questions concerning this client alert.