What Should You Know About the EB-1 Green Card Backlog for Indian and Chinese Nationals?

For the first time in many years, the EB-1 green category is no longer a fast track for all who qualify. At least for now. Recent predictions of an EB-1 visa retrogression came true when the August 2016 visa bulletin showed a final action cutoff date for EB-1 applicants born in China or India.

Many applicants from India or China who filed an I-140 EB-1 petition on or after the cutoff date will not be able to obtain an immigrant visa or adjust status until new visas become available.

Here’s what you should know if you are an Indian or Chinese national who has applied or plans to apply for an EB-1 green card:

  • The visa backlog applies to applicants for EB-1A extraordinary ability, EB-1B outstanding researcher, and EB-1C multinational executive/managers green cards
  • You can submit your I-140 petition at any time. The visa bulletin only controls when you can file your I-485 adjustment of status application and when it can be approved.
  • If you are still waiting for approval of your I-140 petition, you can apply for adjustment of status before July 31, 2016.
  • If your I-140 petition was approved before January 1, 2010, you can apply for adjustment of status even in August.
  • If you plan to apply for EB-1 in July, you can apply for adjustment of status (I-485) at the same time. However, if your I-140 petition is denied, your I-485 application will be denied as well.
  • If your I-140 is approved and you have applied for adjustment of status, your I-485 will remain in process and cannot be approved until your priority date becomes current. Continue to check the visa bulletin’s final action chart to determine if your priority date is current.
  • If you are near your 6th year of your H-1B visa, your EB-1 I-140 is approved, and your priority date is January 1, 2010 or later, then you are eligible for a three year extension.
  • Each fiscal year, a new allocation of 140,000 employment based visas become available. According to the Department of State announcement last month, the EB-1 category will become current again this October.

This unusual backlog is caused by the high number of applications and approvals in the EB-1 category in the past year. Because the EB-1 category enjoys top priority in the order of immigrant visa numbers, it will continue to be the fastest path for qualified employment-based applicants.