EB-1 Retrogression in April (China and India): What You Need To Consider
The Department of State has released the April 2018 Visa Bulletin for employment-based preference categories with a major update affecting the EB-1 preference category. Beginning April 1, individuals born in China or India will no longer be immediately eligible for a green card under EB-1 unless they filed their I-140 petition before January 1, 2012. This retrogression is expected to continue until October 1, 2018.
If you were born in one of these countries, and are hoping to receive your green card based on an EB-1 petition, read on to find out how you might be affected.
Filing an EB-1 I-140 Petition
Retrogression does not impact your ability to file or receive a decision on an I-140 petition.
If Your I-485 is Currently Pending Under EB-1
Your I-485 should not be approved unless your priority date is current. If you have a pending I-765 or I-131, they should still be issued/processed as normal, irrespective of the retrogression.
If You Do Not File an I-485 Prior to April 1st
USCIS has yet to release guidance specifying whether to follow the Final Action Dates chart or the Dates for Filing chart. However, we anticipate use of the Final Action Dates chart. If this is true for April, then you would not be eligible to file an I-485 until your priority date is current, which is most likely to be in October, unless you have an early priority date from your I-140. In this event you will need to consider:
If your visa status will expire prior to October 1, 2018, you need to determine how you will maintain status if you are unable to file an I-485. This may mean looking towards a non-immigrant visa solution or planning a departure from the U.S.
Work Authorization (EAD)
If you plan on relying on a pending I-485 for work authorization, you need to keep in mind that it is currently taking 3-5 months for EADs to be adjudicated. If dates remain retrogressed and you cannot file an I-485 until October 1, you may not receive work authorization until sometime in 2019.
Travel Authorization (AP)
If you plan on relying on a pending I-485 for travel authorization, keep in mind that it is currently taking 3-5 months for Advance Paroles to be adjudicated and departure from the U.S. while an advance parole is pending will result in its denial. Similar to the EAD, if you cannot file your I-485 until October 1, you may not receive travel authorization until sometime in 2019.
If you cannot file an I-485 because of retrogression and need a visa status, make sure to strategize with one of our High-Skilled Immigration experts for possible solutions. Often, for EB-1A, EB-1B, and EB-2 NIW applicants, O-1 visas can be an attractive option.