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EB-1 Visa Retrogression: When Extraordinary Is Not So Extraordinary EB-1 Visa Retrogression: When Extraordinary Is Not So Extraordinary

EB-1 Visa Retrogression: When Extraordinary Is Not So Extraordinary

Green card backlogs are not new, as the U.S. quota and preference system has often resulted in most foreign nationals waiting several years to complete the permanent residency process, but historically, the most accomplished and “extraordinary” green card applicants have benefitted from faster processing than other foreign professionals. In recent months, however, an increase in green card application filings has resulted in significant “visa retrogression,” leaving many to wonder whether being deemed “extraordinary” is really worth it.

The Immigration and Nationality Act provides an annual allotment and preference classification system for allocating employment-based permanent resident status (“green card”). Under this system, 140,000 employment-based green cards are available each fiscal year, with per country and preference level limitations dictating how many green cards can be issued to any one group. When demand exceeds supply, foreign nationals find themselves stuck in line waiting for the next annual allotment, and in some cases, that wait can exceed several years. 

The first and highest preference classification within the employment-based green card quota system has not historically experienced retrogression. This employment-based first preference (“EB-1”) category includes individuals of extraordinary ability, outstanding researchers and professors, and multinational managers and executives. In addition to the historical benefit of consistent green card availability, these same applicants are not subject to the labor certification process that applies to most other green card applicants (in that more “traditional” process, the U.S. sponsoring employer must first prove the unavailability of U.S. workers for the offered position through a strict and time-consuming process). As a result, successful EB-1 green card applicants were able to secure permanent residency months or years faster than foreign nationals qualifying in other preference classifications.

In recent months, however, the number of applications has increased substantially, and all EB-1 applicants are now subject to retrogression. Currently, individuals are waiting well over a year for their eligibility to file green card applications (with an additional year or more for processing after the application is finally filed). This new phenomenon may significantly impact nonimmigrant visa strategy and international travel considerations, among other factors which were not previously an issue for most EB-1 applicants. EB-1 is still the best and most appropriate green card strategy for some foreign nationals, but intentionally pursuing green cards in other employment-based preference categories may be more beneficial for many employees. This option should be discussed thoroughly with immigration counsel, as green card availability changes often, and there are other factors that may impact eligibility. 

Please contact Christl P. Glier, Jenifer M. Brown, or another member of our Immigration Practice Group to discuss green card strategy or related matters.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.
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