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Highly talented Indians on fast track EB-1 green card queue face disappointment, delays
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For thousands of highly skilled and talented Indians, who are waiting for green cards in the US on the fast track EB-1 (employment based) category, the recent monthly visa bulletin released by the US Citizenship and Immigration Services, brought bad news.
The visa bulletin for October 2023, which is also the first for the fiscal year 2024, did not deliver on an earlier USCIS guidance that the backlog would ease for Indians waiting for green cards on the EB-1 category, who are mostly people with extraordinary ability, or those who have distinguished themselves professionally in their fields of work or study.
In the August 2023 visa bulletin, priority dates, or the date when USCIS receives the applicant’s green card petition, for Indians on the EB-1 category had retrogressed by almost a decade and at that time USCIS in its guidance had indicated that the priority dates would become current when the years ‘resets’ in the October bulletin. “Indians were expecting the priority dates to become current or close to current. Unfortunately that did not happen and instead of becoming current from 2012, to when the dates had retrogressed, it went to 2017,” says Debarghya Das, an entrepreneur who is on the founding team of a unicorn startup and one of thousands of Indians in the US facing huge delays on long green card queues.
Considering that immigration experts were expecting that the final action date, which is when a green card is available for a foreign national with a current priority date that month, would progress to early 2022 in the recent October visa bulletin, there is a sense of disappointment among EB-1 applicants. “Unfortunately, the final action dates chart shows that for India-born individuals in the EB-1 category, they can file a green card application if their priority date is before January 1, 2017,” says Brian Lisonbee, founder of Lisonbee Immigration Law, a business immigration law firm.
The communication from the US state department, in the August bulletin, had raised hopes substantially that EB-1 based I-140 applications of Indians would be eligible if they have 2022 priority dates. “To now find that they actually could potentially have a five year backlog is scary, deflating, and hard for a lot of people trying to immigrate to the United States. A lot of Indian nationals wait years for a green card and really go out of their way to build EB-1 profiles. To then experience a steep backlog is a tough pill to swallow,” Lisonbee adds.
However, that fact that there has been some forward movement in the EB-1 dates for Indians after the significant 10-year retrogression in the August 2023 visa bulletin is being seen as a positive signal by many. “The final action date for EB-1 (India) has advanced in the October visa bulletin; even though the forward movement is less than what people were hoping for.
The state department had said that EB-1 dates will come back to February 1, 2022, as they were before retrogression, but that has not happened. The dates have moved forward five years; and it needs to move forward another five years, for it to come back to where it was. This movement while significant is still distant from where it was before retrogressing. So, it is not entirely bad news,” feels Manjunath Gokare, founder and managing partner of Gokare Law Firm, a business immigration law firm, based in the state of Georgia in the US. He adds that, according to the prediction by his law firm, often the forward movement of dates do not pan out as anticipated, due to unforeseen increase in demand.
The inclusion of a cut-off date in the October 2023 visa bulletin table for EB-1 (India), at January 1, 2017, bears significant implications for Indians seeking employment-based green cards. “This development is cause for concern due to the extensive backlog it represents in the processing of green card applications for Indian nationals in the top preference category. With this cut-off date, only applicants who filed their employment-based immigrant petitions (Form I-140) on or before January 1, 2017, are presently eligible to be approved for their green cards. Consequently, those with later priority dates are facing prolonged waiting periods, extending potentially for several years, if not longer,” says Emily Neumann, attorney at law at Reddy & Neumann, a US business immigration firm. This delay, she feels, brings about uncertainty, disrupts career plans, and has wider consequences, such as competitive disadvantages and challenges for US employers sponsoring foreign workers.
Gokare, however, feels that the USCIS is taking an incremental approach. “By retrogressing dates for filing EB-1 (India), it is firstly getting a handle on new cases. By carefully studying the visa demand, they will readjust EB-1 (India) final action dates gradually in the next 1 to 2 quarters, before bringing it back to February 1, 2022,” he says.
Earlier this month, the USCIS had issued a guidance on EB-1 to help clarify what types of evidence can be provided to qualify for the category. The policy guidance is on types of evidence that may be evaluated to determine eligibility for extraordinary ability (EB-1-A) and outstanding professor or researcher categories (EB-1-B).
“These changes align with the Biden administration’s goal of enhancing predictability and transparency in immigration pathways for international STEM scholars and experts. Notable updates include allowing certain doctoral dissertation awards and PhD scholarships from renowned institutions to qualify for EB-1A criteria, broadening the definition of published material to encompass team-based work, and permitting satisfaction of the EB-1A authorship of scholarly articles criterion through conference presentations,” says Neumann.
For EB-1B petitions, a more qualitative evaluation of evidence is suggested, considering potentially relevant evidence beyond the regulatory criteria. “These changes expand the range of acceptable evidence and offer greater flexibility for STEM researchers and scholars seeking permanent residence in the United States, potentially facilitating their qualification for these employment-based green card categories,” she added.
Meanwhile, for the EB-2 category, on which thousands of Indians are facing huge backlogs for green cards, there is some good news. “We see advancement for Indians in the final action date for EB-2 and EB-3 category. The EB-2 final action dates have advanced by one year to January 01, 2012, and EB-3 has advanced by three years and four months to May 1, 2012. However, we see a modest change in the dates for filing chart for EB-2 (advanced by two weeks to May 15, 2012) and EB-3 remains unchanged,” says Soumya Agadi, attorney at Gokare LPO in Bengaluru.
The visa bulletin for October 2023, which is also the first for the fiscal year 2024, did not deliver on an earlier USCIS guidance that the backlog would ease for Indians waiting for green cards on the EB-1 category, who are mostly people with extraordinary ability, or those who have distinguished themselves professionally in their fields of work or study.
In the August 2023 visa bulletin, priority dates, or the date when USCIS receives the applicant’s green card petition, for Indians on the EB-1 category had retrogressed by almost a decade and at that time USCIS in its guidance had indicated that the priority dates would become current when the years ‘resets’ in the October bulletin. “Indians were expecting the priority dates to become current or close to current. Unfortunately that did not happen and instead of becoming current from 2012, to when the dates had retrogressed, it went to 2017,” says Debarghya Das, an entrepreneur who is on the founding team of a unicorn startup and one of thousands of Indians in the US facing huge delays on long green card queues.
Considering that immigration experts were expecting that the final action date, which is when a green card is available for a foreign national with a current priority date that month, would progress to early 2022 in the recent October visa bulletin, there is a sense of disappointment among EB-1 applicants. “Unfortunately, the final action dates chart shows that for India-born individuals in the EB-1 category, they can file a green card application if their priority date is before January 1, 2017,” says Brian Lisonbee, founder of Lisonbee Immigration Law, a business immigration law firm.
The communication from the US state department, in the August bulletin, had raised hopes substantially that EB-1 based I-140 applications of Indians would be eligible if they have 2022 priority dates. “To now find that they actually could potentially have a five year backlog is scary, deflating, and hard for a lot of people trying to immigrate to the United States. A lot of Indian nationals wait years for a green card and really go out of their way to build EB-1 profiles. To then experience a steep backlog is a tough pill to swallow,” Lisonbee adds.
However, that fact that there has been some forward movement in the EB-1 dates for Indians after the significant 10-year retrogression in the August 2023 visa bulletin is being seen as a positive signal by many. “The final action date for EB-1 (India) has advanced in the October visa bulletin; even though the forward movement is less than what people were hoping for.
The state department had said that EB-1 dates will come back to February 1, 2022, as they were before retrogression, but that has not happened. The dates have moved forward five years; and it needs to move forward another five years, for it to come back to where it was. This movement while significant is still distant from where it was before retrogressing. So, it is not entirely bad news,” feels Manjunath Gokare, founder and managing partner of Gokare Law Firm, a business immigration law firm, based in the state of Georgia in the US. He adds that, according to the prediction by his law firm, often the forward movement of dates do not pan out as anticipated, due to unforeseen increase in demand.
The inclusion of a cut-off date in the October 2023 visa bulletin table for EB-1 (India), at January 1, 2017, bears significant implications for Indians seeking employment-based green cards. “This development is cause for concern due to the extensive backlog it represents in the processing of green card applications for Indian nationals in the top preference category. With this cut-off date, only applicants who filed their employment-based immigrant petitions (Form I-140) on or before January 1, 2017, are presently eligible to be approved for their green cards. Consequently, those with later priority dates are facing prolonged waiting periods, extending potentially for several years, if not longer,” says Emily Neumann, attorney at law at Reddy & Neumann, a US business immigration firm. This delay, she feels, brings about uncertainty, disrupts career plans, and has wider consequences, such as competitive disadvantages and challenges for US employers sponsoring foreign workers.
Gokare, however, feels that the USCIS is taking an incremental approach. “By retrogressing dates for filing EB-1 (India), it is firstly getting a handle on new cases. By carefully studying the visa demand, they will readjust EB-1 (India) final action dates gradually in the next 1 to 2 quarters, before bringing it back to February 1, 2022,” he says.
Earlier this month, the USCIS had issued a guidance on EB-1 to help clarify what types of evidence can be provided to qualify for the category. The policy guidance is on types of evidence that may be evaluated to determine eligibility for extraordinary ability (EB-1-A) and outstanding professor or researcher categories (EB-1-B).
“These changes align with the Biden administration’s goal of enhancing predictability and transparency in immigration pathways for international STEM scholars and experts. Notable updates include allowing certain doctoral dissertation awards and PhD scholarships from renowned institutions to qualify for EB-1A criteria, broadening the definition of published material to encompass team-based work, and permitting satisfaction of the EB-1A authorship of scholarly articles criterion through conference presentations,” says Neumann.
For EB-1B petitions, a more qualitative evaluation of evidence is suggested, considering potentially relevant evidence beyond the regulatory criteria. “These changes expand the range of acceptable evidence and offer greater flexibility for STEM researchers and scholars seeking permanent residence in the United States, potentially facilitating their qualification for these employment-based green card categories,” she added.
Meanwhile, for the EB-2 category, on which thousands of Indians are facing huge backlogs for green cards, there is some good news. “We see advancement for Indians in the final action date for EB-2 and EB-3 category. The EB-2 final action dates have advanced by one year to January 01, 2012, and EB-3 has advanced by three years and four months to May 1, 2012. However, we see a modest change in the dates for filing chart for EB-2 (advanced by two weeks to May 15, 2012) and EB-3 remains unchanged,” says Soumya Agadi, attorney at Gokare LPO in Bengaluru.
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