Visa Bulletin: EB-1 Preference Categories Still Backlogged; DOS Provides Explanation and Projections

Those foreign nationals who have approved employment-based first preference (EB-1) petitions are wondering, why is the category still backlogged when historically the category “re-sets” and becomes current on October 1 with the start of the new U.S. fiscal year? For Indian nationals, the backlog is particularly troublesome because there have been no firm estimates on how long they can expect to wait although some calculate the wait could be upwards of 10 years!

The following is an explanation and some projections for the coming years from the Department of State. Normally, there are low levels of demand that allows for thousands of unused visa numbers from the EB-4 and EB-5 categories to become available for use in the EB-1 category. Not only have those numbers not been available in recent years, the high demand for numbers has required the application of “Final Action Dates” for all countries, and the dates for China and India have retrogressed during the past year. For FY2020, DOS does not expect that there will be any extra unused numbers available to EB-1 India and EB-1 China in the foreseeable future. Moreover, DOS predicts that there will not be any movement for EB-1 India until January 2020 at the earliest.

There are currently some 17,000 EB-1 India applicants who were interviewed, adjudicated, and now waiting for a visa to become available. Potential upgrades from EB-2 India could make EB-1 India backlogs worse. As for EB-1 China, the priority date advanced three months from October to November but that could slow down.

Because EB-1 China and EB-1 India will be subject to their per country limits in the foreseeable future, the only possibility of more rapid movement in these categories is if demand for visas in EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) falls below that which is allowed under the overall statutory annual limit. (Latest reports from USCIS, in fact, show significantly lower demand.) If this low demand trend continues, EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam) could potentially return to “current” around April 2020, and as a result EB-1 India, and possibly China, would benefit from the “otherwise unused numbers” which would allow the Final Action Date to advance at a faster pace for those two countries.

While in the past, DOS was able to wait until closer to the end of the fiscal year to redistribute the otherwise unused worldwide numbers in other preference categories, allowing the India and China categories to advance, high demand in EB-3 and EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, Philippines, and Vietnam), prevented these categories for China and India from advancing as they had historically. The result is significant pending demand particularly for India.