EB-1 and EB-2 Green Cards Unavailable until Oct. 1st

If you were applying for a green card this year through an EB-1 or EB-2 visa there has been some recently bad news. (USCIS) United States Citizenship and Immigration Services & The (DOS) State Department have used up all 280,000 green cards that were available for this fiscal year. In addition to the used EB-1 and EB-2 its now expected that the EB-3 visas will be used by the end of September.

With this green card announcement USCIS in coordination with the DOS is releasing an additional October visa bulletin on how they’ll are revising the procedures for determining visa availability for applicants. Because of this they are now two visa bulletin in one month which hasn’t occurred in over five years.

Does This Effect You?

Depends, if your case did not have a visa number allocated to your registration then the used green cards does effect you, and you’ll be unable to get your case approved until after Oct 1st. If you were lucky to receive a visa number your case could be approved very shortly!

Priority Dates

What is a priority date? Priority dates is an issued day of the year from USCIS to you the petitioner. Each priority date is different for each green card petitioner. This priority date is a formal way of the government saying here’s your place in line with all the other green card petitioners. Some people could get unlucky and receive a priority date that’s outside of the available green cards that are issued in a fiscal year.

For example, you the applicant, registered and received a notice from USCIS to have a green card petition. Then you submit your petition to USCIS and they send back a priority date of August 2nd. USCIS happens to have a really great year and issues all of the green cards by August 1st but you did not receive an approval. Because of this priority date you will now have to wait an additional three months for USCIS to start issuing green cards again.

You can find your priority date on the I-797 form mailed by USCIS approving your I-130 petition.

Priority Date Backlog

Currently because of USCIS & DOS recent announcement applicants who are registering for permanent residency through the EB-1 and EB-2 will not have they’re form I-485 processed. Why do you need the form I-485 processed? Because on the form is where USCIS will give you a priority date. While your form I-485 is on hold other part of your petition is still valid and you can request renew different part of your petition, like the EAD employment authorization document or AP advance parole document which allows the you the petitioner to travel outside the United States lawfully. Which is good news for people who have family outside the U.S.

Green Card Dilemma

There was an unprecedented 80,000 EB-1’s issued, causing a green card dilemma. The previous all time high was barely 40,000. This recored was mainly due to more and more people applying for the EB-1. People are no longer wanting to wait for EB-2 or EB-3 as these green cards have historically taken longer to process than the EB-1. There’s also been a qualification trend occurring with more and more immigrants qualify for the EB-1 and those immigrants not wanting to get stuck in the other green cards that tend to have longer timelines. This qualification trend mostly occurs later through out a petitioners case, due to staying in the U.S. longer and achieving qualification throughout their residency.

How serious is the extra wait? Recently EB-2 applicants who registered as far back as 2015 are looking at another five years, potentially, for their case to be approved.

Primary & Derivative Applicants

What happens if the primary applicant receives and approval, but the derivative applicant is still pending? Unfortunately, if the available green cards are issued by USCIS and the derivative applicant is still pending they will not receive an approval notice. If they were a dependent of your non-immigrant status like an H-4 visas, L-2 or E-3 and become a green card holder the dependent is no longer tied to your status and transition outside the dependent title, meaning they are no longer in H-4, L-2 or E-3 status instead they’re in the adjustment of status. The adjustment of status is a lawful stay, but you are still required to have an EAD to work and AP to travel. During this time your status would change or remain pending until USCIS approves your case.

Furthermore, just because your case dependents file was transferred over to the NVC national visa center this transfer does not mean the dependent is guaranteed a visa number. There we’re situational case transfers that had to do with the I-140 form getting approved, but that doesn’t mean that a dependent would receive an allocated visa number.

However, if your dependent did not get approved and the primary did receive an approval you may want to file an I-130 which is a petition for immediate relatives who are seeking adjustment of status and typically take 5-9 months. Once approved USCIS will start the review process for I-485 the adjustment of status to permanent residency petition. The form I-130 is an important opportunity to apply for because when you the primary petitioner receives a green card your spouse will become an F-2A under these terms allow you to potentially save significant time in approval.

EB-2 & India

Most of this retrogression is happening in India. This retrogression is why we’re seeing a high volume of immigrants who are consular processing their green cards at the India consulate. The good news is in October we’ll see things flatline and green cards being issued, with the exception of India.

Conclusion

Overall, as of right now things are looking bleak, but in October we expect to see some type of relief for people who are waiting on their EB-1 and EB-2 green cards. This retrogression is mainly affecting people from India as they make up a high volume of the EB-2 category. If you have any questions regarding your case or what’s happening with the EB-1 and EB-2 green cards please reach out to an immigration attorney for guidance.