How Does the Visa Retrogression of April 2018 Affect Chinese EB-1 Cases?

by Jeanny Tsoi on Jan. 15, 2020

Immigration 

Summary: How Does the Visa Retrogression of April 2018 Affect Chinese EB-1 Cases?

Starting April 1, 2018, the cut-off date for Chinese EB-1 cases will retrogress to January 1, 2012.  This means only Chinese beneficiaries with a priority date before January 1, 2012 may submit a green card application.  This significantly delays the process of applying for a green card for 6 years!  EB-1 cases include visa petitions for aliens with extraordinary abilities, outstanding professors and researchers, and multinational managers and executives.

Fortunately, the visa bulletin is subject to change.  Last month in March, EB-1 beneficiaries may file the green card application concurrently with the EB-1 petition (aka I-140 form).  However, this month, the cut-off date retrogressed to January 1, 2012 for Chinese nationals – a huge difference!

In May (more likely October 1, 2018 – the start of the new fiscal year),  the visa bulletin would change and EB-1 beneficiaries may once again concurrently file their green card applications with the EB-1 petitions.  Meanwhile, it is crucial to understand what the visa bulletin is, what the priority date means, and most importantly, how to read the visa bulletin charts.  This article explain there things.

Step 1: Find the Priority Date

             The priority date is the date on which the petition was properly filed with the U.S. Citizenship and Immigration Services (“USCIS”).  If the petition was already filed, you would be able to find the priority date on the I-140 receipt:

 

 

Step 2: Look at Chart A

 Congress sets limits on the number of immigrant visas that can be issued each year.  The visa bulletin keeps track of whether immigrant visas are available to foreign nationals in certain preference categories and countries.  If the priority date is earlier than the cut-off date listed on the visa bulletin, then a visa is available and the beneficiary may apply for a green card.

There are currently two (2) charts on the visa bulletin.  Chart A is titled “Final Action Dates for Employment-Based Preference Cases” and Chart B is titled “Dates for Filing of Employment-Based Visa Applications.”  Essentially, Chart A determines when USCIS will adjudicate the green card application, while Chart B determines when it can be filed.

Using the priority date in the image above (May 18, 2015), if the beneficiary is a Chinese national, USCIS would not adjudicate the case in April because the priority date is after the cut-off date of January 1, 2012.

However, the beneficiary may still file the green card application.  One would need to look at Chart B to determine that.

Step 3:  Determine whether Chart B can be used

Chart B determines whether the beneficiary may file a green card application (even though it would be adjudicated at a later time).  The benefit of submitting a green card application early is the beneficiary may simultaneously apply for a work permit and travel document (known as advance parole).  As long as the green card application is pending, the beneficiary may apply for and renew the work permit and advance parole.  Stated differently, even if it takes USCIS 6 years to finally adjudicate and approve the green card application, meanwhile, the beneficiary may continue to work and travel overseas.  This is a great advantage.

Unfortunately, Chart B is only “sometimes” honored by USCIS.  To make things even more complicated, you must visit www.uscis.gov/visabulletininfo to determine whether Chart B can be used in lieu of Chart A.  For April 2018, only Chart A, “Final Action Dates,” can be used.  This means if an EB-1 petition is filed in April 2018, the Chinese beneficiary may need to wait 6 years before he or she is allowed to apply for a green card.

Again, the visa bulletin changes every month, so do not lose hope and seize the opportunity when it is available!

Step 4:  Look at Chart B (if permitted)

 If Chart B can be used, and it shows the cut-off date as “C” or current, then the beneficiary may concurrently file the green card application with the EB-1 petition.

Step 5:  File for Green Card Application as soon as Priority Date is Current

If the priority date is not current yet and Chart B cannot be used, then the beneficiary must pay very close attention to the visa bulletin.  Alternatively, seek help from an experienced immigration attorney and let the legal team keep track of the process and monitor all updates and significant changes.         

Waiting is excruciating, but do not lose hope.  If filing for a green card is taking longer than expected, make plans to keep your legal status, such as F-1, H-1B or L-1, valid throughout the waiting period.

Conclusion

If you are still unsure of your status, see an immigration professional who you can trust.  The last thing you need is to walk out of a law office feeling more confused and uncertain about your future in the United States.

At Wilner & O’Reilly, we specialize in the practice of immigration law.  We have board certified specialists, former immigration officers, and experienced licensed attorneys to help you achieve your immigration goals.  We take pride in maintaining the trust and confidence of our clients.  Schedule your free in-person consultation today.

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