Editor’s note/disclosure: This sponsored commentary piece was written by an attorney at Fragomen, Del Rey, Bernsen & Loewy, LLP under an advertising arrangement with Global Atlanta.
Historically, foreign national employees who meet the lofty threshold for qualifying as individuals of extraordinary ability, outstanding professors or researchers, or multinational managers have enjoyed a fast track to obtaining lawful permanent resident status in the United States, commonly referred to as becoming green-card holders.
Classified as priority workers in the Employment-Based First Preference (EB-1) category for immigrant petitions, these individuals are able to bypass the time-consuming labor market test that is required for immigrant petitions in other employment-based categories. That means traditionally they’ve obtained green cards immediately upon approval of their immigrant petitions—until now.
While EB-1 applicants still avoid the labor-market test, their fast track to obtaining a green card has hit an unexpected speed bump.
The U.S. Department of State recently released its monthly Visa Bulletin for November 2018, the second in Fiscal Year 2019, which began on Oct.1. The bulletin confirms the continuation of an unprecedented backlog in green-card availability for the EB-1 category. That means foreign nationals who, only months ago, reasonably expected that they would soon be lawful permanent residents have seen a delay in attaining that status. In many cases, this is causing employers to incur additional costs and to alter their strategies to secure continued work authorization for employees impacted by the backlog.
Why the Backlog?
Congress has established an annual cap on the number of individuals who may become lawful permanent residents in the United States. The available immigrant visas are allocated by law according to family- and employment-based immigrant visa categories, country of origin, and priority date (the date the immigrant petition is first filed with the government).
When there are more applicants in a given category and country of origin than there are available green cards, a backlog occurs. This is referred to as visa retrogression. In these instances, only individuals with a priority date earlier than the cut-off date indicated on the Department of State’s monthly bulletin are eligible to apply for and obtain a green card.
What Makes the Current Backlog Unusual?
Due to the relative difficulty of qualifying for the EB-1 category, there have historically been fewer applicants in this immigrant category than the number of available green cards, and applicants have succeeded in obtaining lawful permanent resident status relatively quickly upon approval of their immigrant petitions.
In August 2016, the EB-1 category retrogressed for the first time for Indian and Chinese nationals due to the high number of applicants from these countries, the world’s two largest by population.
However, with the start of the new fiscal year on Oct. 1, new visas became available, and the category became current again. A similar backlog for Indian and Chinese nationals occurred again in June 2017, but it also disappeared with the start of the new fiscal year.
[pullquote]While EB-1 applicants still avoid the labor-market test, their fast track to obtaining a green card has hit an unexpected speed bump.[/pullquote]
In 2018, the EB-1 category has seen multiple unprecedented developments. First, visa retrogression occurred for Indian and Chinese nationals as early as April 2018. Then, in August 2018, the EB-1 category retrogressed for all applicants worldwide. Finally, although a new fiscal year commenced on October 1, the EB-1 category remains retrogressed.
What Is the Impact of the Backlog? And What Can Employers Do?
For foreign nationals who qualify for the EB-1 category, the first step in the green-card process is the immigrant petition, which is not impacted by visa retrogression. EB-1 petitions may continue to be filed despite the backlog. The second step in the process is the green card application. Visa retrogression prevents filing the green card application and, in cases where the application was filed before the category retrogressed, it prevents approval of the application.
At a minimum, the unprecedented backlog in the EB-1 category means that applicants in this category have to wait longer than expected to obtain lawful permanent residence. The latest visa bulletin’s cutoff date for Chinese and Indian nationals is June 1, 2016, meaning that green cards may only be approved for applicants whose priority dates are earlier than that date. For all other applicants, the cutoff date is April 1, 2017. As the months progress, the expectation is that these dates will advanced until the EB-1 category is again current, but there is no certainty as to when or if this will actually happen.
Apart from the unexpected delay in the green card process, EB-1 visa retrogression means that many employers must now incur additional costs to secure continued work authorization for employees impacted by the backlog. Most applicants who filed their green card applications prior to the backlog are eligible for work authorization pursuant to the pending applications, but foreign nationals who are now unable to file the green card application will have to extend their underlying nonimmigrant status if it expires before their priority dates become current again. While the law permits the extension of H-1B status beyond the normal six-year limit in cases where an immigrant petition has been approved but green cards are unavailable, this is not the case for all nonimmigrant visa categories.
For example, there is not a similar provision for foreign nationals who hold L-1 status, which has a maximum duration of seven years for managers and five years for individuals possessing specialized knowledge. Thus, if an employer filed an EB-1 immigrant petition on behalf of an employee in L-1 status prior to the category becoming retrogressed with the reasonable expectation that there would be sufficient time to file the green card application at a later date, the current unexpected backlog may put the employee at risk of running out of work authorization before a green card application is able to be filed.
What Now?
Although the government’s projections continue to change, its latest guidance indicates that the current backlog may end within the next several months, at least for individuals from countries other than India and China. However, if the number of applications in the EB-1 category continue to rise, visa retrogression could become the norm. Employers should take the extra delays into consideration when determining when to sponsor employees for permanent residence in the EB-1 category and should take advantage of periods when the category is current to file green card applications for employees with pending or approved immigrant petitions. The EB-1 category remains a relatively fast track to lawful permanent resident status due to its lack of a labor market test requirement and the higher threshold for qualifying. However, it is no longer the express lane that it has historically been.
Jason Croft is an Associate at Fragomen’s Atlanta office, where he assists clients with a range of U.S. immigration matters. Jason focuses his practice on O-1 and EB-1 (extraordinary ability, outstanding researcher and multinational manager) petitions. He also has experience preparing nonimmigrant visa petitions (e.g., L-1, H-1B, E-3 and TN). Jason primarily supports clients in the automotive, power and automation, and supply chain industries.