Law Offices of Chris M. Ingram

EB1 Retrogression – The Latest – Part 2

We now have the latest Visa Bulletin for October 2018 and it looks like we're going to stay in retrogression for a while. However, there are some positives, so follow this article carefully and we'll go from there.

We now have the latest Visa Bulletin and it looks like we’re going to stay in retrogression for a while. However, there are some positives, so follow this article carefully and we’ll go from there.

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When Can I File My Green Card?

By Chris M. Ingram, LL.M., ESQ 

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Today, I’m going to explain the concept of “Retrogression” and how it may or may not impact how USCIS will process EB1 Green Card applications for Aliens of Extraordinary Ability moving forward. So, let’s get started.

The Law Offices of Chris M. Ingram is primarily an EB1 green card specialist law firm.  For the last fifteen years, we have established a very strong skill set in winning EB1 cases no matter what resistance we might face from U.S. Immigration and no matter what President is in the White House, we just focus on the practice if U.S. Immigration law.

Congress has authorized USCIS to issue up to 40,000 EB1 green cards each year and for most of the last 15 years, this 40,000 EB1 green card quota has rarely if ever been reached. What this has meant over that time is that as soon as our client’s EB1 petitions were approved we could immediately apply for their green. In other words, the cap was just a theoretical number and our client’s green card would just follow normal processing timelines of 6-9 months. Today, it’s not that way any longer, we have to grapple with the concept of Retrogression.

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The EB1 Retrogression can last anywhere between 3 months and one year depending where you are from.

The EB1 Retrogression can last anywhere between 3 months and one year depending on where you are from.

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Is there a Cap on Filing an EB1 Petition / Application?

Please note, there is no numerical cap on how many people can file an EB1 petition to get the designation of being an Alien of Extraordinary Ability. Indeed, we are encouraging as many of our potential clients as possible to get off the fence and jump into preparing their EB1 cases ASAP, because the longer they leave it, the longer they will have to wait to become eligible to file for their green cards and meanwhile they may lose their current U.S. status if they have a visa.

Getting an EB1 green card is a two-step process: –

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Step 1: is to file your EB1 petition to get the designation of being an Alien of Extraordinary Ability and thus being eligible to apply for a green card.

Step 2: is filing for the green card(s) itself.

It is in Step 2 that the cap applies and if the cap is reached we cannot go to step 2 until the more green cards become available. 

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Is there a Difference between Filing the Form I-485 with USCIS for the Green Card vs. Filing a DS-260 with the Consulate for your green card?

Once your EB1 petition has been approved you can file for your green card (subject to availability) using the online form DS-260 if you are consular processing or the form I-485 if you are applying in the U.S. because you are already working here.

If you are caught in “Retrogression”, this means you cannot file either an I-485 or a DS-260. If you do the Consulate or USCIS will just send it back, since they have no authority to process the application, since at that time no green cards are available.

We have many clients, like every lawyer in the country, who are in this predicament. Please know that it’s no one’s fault, this is just how U.S. Immigration works sometimes.

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EB1 Cap vs. EB2 Cap

A step down from the EB1 is the EB2 green card. Because the EB2 qualification threshold is lower than the EB1 it stands to reason that there would be far more EB2 applications going in than EB1 applications. So, EB2 clients typically, from India or China are used to being in retrogression. Indeed the average EB2 Indian/Chinese applicant will have a wait time of around 8-10 years before they can apply for their actual green cards. Whereas, Retrogression for EB1 applicants is brand new and the wait times, as stated earlier can be now 1-2 years for India/Chinese but for everyone else the wait seems to between 3-6 months. So, if you look at it that way, the EB1 Retrogression is quite mild, to say the least, even if still inconvenient.

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In essence, retrogression is when U.S. Immigration are temporarily unable to process any more green cards.

In essence, retrogression is when U.S. Immigration is temporarily unable to process any more green cards.

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So, to re-cap Retrogression is when the applicant has been approved for eligibility for a green card by way of an approved EB1, EB2 or EB2 petition/application, but cannot go to step 2 and apply for their actual green card, because the 40,000 cap has been exceeded for that year and as a result they are retrogressed into a queuing system.  Your Priority Date on your approved petition (Form I-140) will determine your position in the queue.

How Do Priority Dates Work? – When USCIS receives your initial visa application they will mail you what is called a Receipt Notice, which confirms: –

A: They officially have your case,

B: The the date they received it,

C: Your official Priority Date,

Your Priority Date records your place in the queue.

So, if you want to find out what the current wait time is for USCIS to get to your case, you can go online and USCIS will confirm, what Priority Dates they are currently processing.  So, for example, the Visa Bulletin currently says that they are processing cases that were filed June 1st, 2018. So, if your priority date is August 1st, 2018, then you can be assured that in about two months USCIS will be getting to your case.

Another way in how the Priority Date works is to confirm when you put your green card application in. So, USCIS might say we are only accepting cases from those who have a Priority Date before June 1st, 2018. So, if you have a Priority Date before June 1st, 2018 you can put your application in now.

So, let’s say you filed for your visa January 1st, 2018 and you got an approval September 1st, 2018 then you may still be able to file your green card because your Priority Date is before June 1st, 2018.

Resetting the Quota / Cap

Every year around October 1st a new quota of 40,000 green cards will be made available to each of the EB1, EB2 and EB3 categories. Most of the time, in previous years the new wave of 40,000 green cards would completely wipe out any Retrogression for most green card types.

In October 2017 when the new wave of 40,000 new green cards became available it completely wiped out the retrogression on all EB1 categories. However, by around March of 2018 (six months later), the EB1 allocation for Indians and Chinese was capped out.  For the rest of the world, the cap was reached around the start of August 2018 (ten months later). You can see now why it’s important not to delay in getting your EB1 application in so that you can either beat the cap altogether, but if you miss cap, you will have an early enough Priority Date, to ensure that you become eligible asap thereafter.

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As more traditional immigration avenues have closed down or ground to a halt the EB1 green card option has become so popular that demand is outstripping availability.

As more traditional immigration avenues have closed down or ground to a halt the EB1 green card option has become so popular that demand is outstripping availability.

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In this chart, I’ve outlined the 1st Preference / EB1 category. So, here we can see is that for India, USCIS is saying that they expect that come October 1st, 2018, USCIS will be still reviewing EB1 green card applications that were filed 1st October 2017. What this means is that if your Priority Date is before October 1st, 2017 then you can file your green card application and USCIS will accept it.

October 2018 Forecast of Visa Availability

The USCIS website actually says “Applicants for immigrant visas who have a priority date earlier than the application date in the chart may assemble and submit required documents…

Let’s take a look at the rest of the world, other than the countries listed by name in the chart. Here, that chart says USCIS is currently working through cases that were filed June 1st, 2018. Today is September 15th, 2018. So, what this chart tells us, is that if your Priority Date is today, then in roughly two and half months you may be able to file your green card application.

Where you see “C” – this means “Current” or that there is ‘no backlog’ and thus if you have an approved Petition and you would like to file your case for that category right now you can.

Porting Your Priority Date from EB2 to EB1

For those clients, typically from India or China, who have approved EB2 petitions, USCIS says they can take the Priority Date from their EB2 and use that date for the EB1 Priority Date, in other words, substitute the older date if that will enable them to beat retrogression.

To be honest, winning case after case is not easy. it's not like USCIS just sees our case and approve it. Oh no, sometimes we have to go back and forth with USCIS making arguments until we win. Its a battle, but we're relentless.

Many of our Indian and Chinese clients have been in retrogression under their EB2 green cards for years, often 5 years or more. If they now have an approved EB1, they may be able to take their EB2 Priority Date and substitute it for their EB1 Priority  Date and file for their green cards right now.

Here is what USCIS actually states on their website: –

USCIS may in its discretion, honor your request to transfer your pending Form I-485 [DS-260] from one eligibility basis to another if you meet certain eligibility requirements. You must be the beneficiary of a pending or approved visa petition in the new category you wish to use. Also, your priority date must be current in the new category and for your country of chargeability on the date you file the transfer, not the initial date that you filed the Form I-485 [DS-260]. Refer to the “Application Final Action Date” chart in the Visa Bulletin, unless USCIS permits the use of the “Dates for Filing Applications” chart.

There are a few terms that I’ll try and clarify.

Chargeability – with regards to the above chart, where it lays out the countries and their processing dates, what this means is that if you were born in India, but now have Canadian citizenship, for the purposes of retrogression you are still deemed Indian.

Dates for Filing Application (DFA) – This is your Priority Date and as outlined above, you would use your DFA to determine how long before you would like a file or how long, if your case is already filed, it might take USCIS to adjudicate your case.

Application Final Action Date (FAD) – My best understanding of this is that the FAD is for those people who have already filed their green card application, but due to quota restrictions they now have to wait for a FAD before they can expect to be invited to complete the final steps of their green card processing.

USCIS also notes that if your EB2 was subject to Labor Certification, then you can use, as your Priority Date, your Labor Certification application date that was receipted by the Department of Labor. Using your Labor Certification date, which would be significantly earlier than your  EB2 Priority Date, could make the difference between being caught by retrogression or not.

When to Rely on the Dates for Filing Application or Application Final Date (EAD

As if things could not be more confusing, there is actually another twist. In addition to the Priority Date chart on their Visa Bulletin board, shown below….

October 2018 Forecast of Visa Availability

      B.  DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

…….USCIS has created a chart called…..

A: FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

So, what you’re supposed to do is this: –

I’ll go step by step so you can follow along.

1: So, if you look at the Visa Bulletin and you want to check to see if your Priority Date is current you are to first go to the chart that says B. Dates for Filing of Employment-Based Visa Applications. This chart is good for checking EB1, EB2 and EB3 (1st, 2nd, and 3rd, etc.,) categories.

2: So, if you are looking at September’s chart you will see that all categories are “Current”. However, before you get too excited, USCIS says you also now need to check a Special USCIS page that will confirm whether or not USCIS wants you to rely on B. Dates for Filing of Employment-Based Visa Applications or, A. Final Action Dates for Employment-Based Preference Cases, for that given month for Priority Dates. 

So, what the page Special USCIS page says is this: –

For Employment-Based Preference Filings:
You must use the Final Action Dates chart in the Department of State Visa Bulletin for September 2018.

For Employment-Based Preference Filings:
You must use the Dates for Filing chart in the Department of State Visa Bulletin for October 2018.

Translation

If you want to find out when your Priority Date can be used to file your case, you have to check the Special USCIS page and check whether USCIS is holding the A. or B. as being valid. Sometimes, it will be A. and at other times it will be B.

So, for September is A., but for October is B. Who knows what it will be for November.

We’ll keep monitoring the USCIS for further twists and intrigue and we’ll update this page as needed.

Conclusion

For all of our clients caught up in the retrogression, please know that we will do our very best to keep you informed. For any of our clients where Retrogression is creating particular hardships, please set up a consultation so we can explore other visa options such as filing an O-1A visa that might tie you over the retrogression period.

Please note that there is nothing we can do about Retrogression it’s the same nationwide, but if they are other interim visa opportunities, now is the time to seriously explore them.

In our experience with retrogression so far, it appears that even some departments of USCIS are also confused since this is a very new phenomenon for everyone. So, we are taking a very step by step approach as we seek to navigate our clients through this process.

We’re here for you.

Attorney Chris M. Ingram