Retrogression of visa category priority dates impact EB petition applications

According to recent information that the American Immigration Lawyers Association (AILA) gained from the U.S. Department of State, the EB-1 Worldwide category is likely to remain retrogressed through December 2018. When visa categories are retrogressed, applicants can still file I-140 petitions; however once the I-140 application is approved, applicants essentially wait in line to file the I-485 adjustment of status applications to become permanent residents of the United States. Applicants with an approved I-140 must maintain their underlying visa status, and can apply for H-1B visa extensions even if they are past the six year limit.

Previous information from the Department of State indicated EB-1 Worldwide would become current on October 1, 2018, as it has in previous years where there was a retrogression. When the status is current, applicants with approved I-140 petitions can immediately apply for adjustment of status through the I-485 application.

EB-2 and EB-3 Worldwide are also immediately retrogressed; however, there is evidence that USCIS will continue to accept I-485 filings until the end of August for these categories. There is no information yet regarding whether EB-2 and EB-3 Worldwide will return to current in October.

You may be asking, what do I do now?

There are a few ways employers and individuals can protect their employees and themselves in this uncertain time:

• If your EB-2 or EB-3 priority date was current as of the August 2018 visa bulletin, you should attempt to file your I-485 application before the end of the month. If you are a FordMurray client in this situation, we will be contacting you shortly.
• For employers, strongly consider applying for extensions of your employees’ underlying non-immigrant status as early as possible
• If you have an Employment Authorization Document card from a pending I-485, make sure you know what the expiration date is and apply for an extension early (up to 180 days before your current EAD expires)
• If you are preparing an EB-1 self-petition case, consider filing now in the hopes of having an approved I-140 to use as the basis for an I-485 application as soon as the category becomes current again

The retrogression of visa categories can feel arbitrary and often change from month to month – it is important to stay informed and up to date on the current status. Visa availability can be confusing and frustrating, but it’s important to remember that even though the application process timelines can change, employment-based petitions still remain an important and robust path to permanent residence for highly skilled workers. If you are considering an employment based green card petition and would like to talk with an attorney, contact us today for a complimentary consultation.