Thousands of Indians working in the US have been facing challenges from being stuck on long Green Card queues for many years. However, there were some lucky individuals who, till recently, were able to get their permanent residence status in the US through a fast track route – the EB-1 application - because of their top academic qualifications or exceptional talent.
However, the EB-1 Green Card applicants received a shock with the monthly visa bulletin by the US department of state for August 2023, with the category now facing a retrogression of 10 years, with final action date for Indians moving back to January 1, 2012; from February 1, 2022. While Green Card applicants with priority dates before the cut-off date can submit applications; retrogression occurs when the cut-off dates, that determine visa availability, move backward instead of forward.
Historically, the EB-1 category for India has been close to being current, and many are surprised to see a 10-year retrogression for this category. So what really happened for Indian applicants of EB-1 to have received such a big setback?
“The EB-1 category is segmented into three sub-categories; EB-1A, EB-1B, and EB-1C. Of these, the EB-1C (for managers and executives of MNCs) category has the most straight forward criteria. Over the past few years, the COVID-19 pandemic led to fewer companies sending their multinational managers to the US, and even those who arrived weren’t immediately sponsored for EB-1C visas.
However, as business travel resumed from early to mid-2022, corporations began dispatching more managers to the US. Consequently, a significant number of these managers persuaded their organisations to sponsor their visa petitions under the EB-1C category in the fiscal year 2023,” feels Aswini Thota, an AI and data analytics expert who serves as a technical leader at Bose Corporation and has approved I-140s (Green Card petitions) under two self-petition categories, EB-2 national interest waiver and EB1-A.
“One of my primary motivations for exploring the EB-2 NIW and EB-1A visas was the opportunity they offer for professional flexibility. While many visa categories like the regular EB-2, EB-3, EB-1B, and EB-1C are associated with specific employers, or tailored to certain job roles and locations, the EB-2 NIW and EB-1A visas recognise an individual’s unique skills and the potentialcontributions they can make to the US,” Thota says.
In his opinion, another contributing factor to the retrogression is the significant experience, skills, and reputation amassed by Indians who have resided in the US for over a decade and held leadership positions.
“The credentials accumulated over the years can make some of these professionals eligible for exclusive visa categories such as EB1-A and EB1-B. As Indians in the US advance in their careers, they often take on leadership roles and perform responsibilities that make them exceptional. This is especially true for people in research-oriented careers. The accomplishments and achievements that come naturally for tenured individuals can meet some of the criteria that the US Citizenship and Immigration Services is looking for in EB-1A and EB-1B categories,” he says. Notably, the US law permits immigrants to transition between employment-based categories without forfeiting their original priority date.
Many of the Indians who are eligible for an employment-based, first-preference visa possess extraordinary ability or are outstanding professors or researchers. An example is Praneet Dutta, who graduated from Carnegie Mellon University in 2018 and subsequently joined Google in Silicon Valley where he is senior research engineer at Google DeepMind. Living in Silicon Valley, Dutta found many of his talented peers, some among the best in their field, grappling with extended wait times for their Green Cards. Many of them were stuck in the backlog, contending with visa stampings and related challenges, some for almost a decade and that is what made him decide to explore alternative immigration avenues.
“The EB-1 Green Card for extraordinary ability appeared to be a viable avenue. As a recent graduate at the time and without holding a PhD or a high executive position, I doubted if I met its criteria,” he recollects. However, after discussions with seasoned professionals and immigration experts, he became optimistic. They believed that his contributions to the AI field might merit a case for this pathway. “Gathering the required documentation and obtaining reference letters was an intensive effort, especially given my daily work commitments,” says Dutta. But the efforts paid off and led to the approval of his application a few months later.
The reasons for the recent retrogression for Indians could be the substantial demand stemming from India’s robust professional sector, in conjunction with the country-specific Green Card limits, feels Dutta. He adds that this retrogression could also be influenced by professionals from other backlogged categories (EB-2/EB-3) applying under the EB-1 category.
Many Indians are not as lucky as Dutta was with the EB-1 Green Card process and those who have a priority date after 2022, are now worst affected by the backlog. “Considering how quickly the EB-1A category has moved in the past; the 10-year retrogression was a significant blow for Indians who have been waiting for their priority dates to become current,” says Arianna Efstathiou, an immigration attorney with David Hirson and Partners, LLP in California.
She, however, feels that the retrogression is a result of how many people are applying for – and getting – EB-1 classification. “The department of state says that the retrogression was caused by increased use, and the fact that we are basically all out of EB-1 visas for this fiscal year. In theory, they could have used some other label to communicate this on the August visa bulletin, instead of giving us the retrogressed cut-off date, and it would have been a lot less scary for Indian applicants,” she says. She adds that, on the brighter side, many Indian nationals have very early priority dates because they’ve retained them from EB-2 or EB-3 categories.
The good news is that the department of state has said that it is likely that in October 2023, at the start of the new fiscal year, the cut-off date for Indian EB-1 immigrants will likely advance all the way back to where it was in August 2023 and things will look better.
The most important reason for the EB-1 retrogression, most experts feel, is that the number of applications has significantly increased, going beyond the cap that has been set for a country.
“Based on research and talking with industry leaders, the driving factor could be that people from varied backgrounds are now applying for EB-1.
Historically, it has been mostly candidates coming from a research background (PhD, post-doctoral etc) who would apply for EB-1 or O-1 (a non-immigrant employment-based visa for individuals of extraordinary ability in sciences, education, business, arts or athletics; or individuals of extraordinary achievement in the motion picture and televisions industries). However, now it’s not limited to only those people, but people who have outstanding achievements in technology or business are equally eligible for these talent visas, which may have increased the total number of applicants,” feels Rudra Roy Choudhury, a product manager at Tubi who holds a masters in engineering management from Cornell University and a masters in electrical engineering from IIT Madras and transitioned directly to the O-1 visa from the F-1 student visa. He adds that with the talent visas becoming more competitive; candidates who are planning to apply for EB-1 or have just applied will feel the impact of retrogression.
Many are still hopeful that the EB-1 retrogression might be a transitory phase with normalisation likely in the new fiscal year when new Green Cards will become available. “More Indian nationals have applied for EB-1 than they have in the past. The big retrogression at the end of the summer is just a reflection that we are nearing the end of the fiscal year and the number of Green Cards available is running out. EB-1 will pick back up in October and we should see a date of around February 2022; though no one can predict with certainty since it is based on the number of filings,” feels Brian Lisonbee, founder of Lisonbee Immigration Law, a business immigration law firm. He adds that a lot of Indian nationals departed the US during the pandemic and have now flooded USCIS with EB-1C with applications and more EB-1As have been filed than in the past.