The Visa Bulletin for October was just released. It appears that retrogression will continue for the EB-2 NIW. While we are extremely disappointed that priority dates did not become current for the EB-2 category, the good news is that USCIS has designated the “Dates For Filing” chart to be used for October.

Under the “Dates For Filing” chart, the EB-2 priority dates for all countries other than China and India will move considerably from July 1, 2022 to January 1, 2023. For China the EB-2 priority dates advance from July 8, 2019 to January 1, 2020. India improves from January 1, 2011 to May 15, 2012.

Under EB-1 priority dates improved significantly for India. Under the “Dates For Filing” chart India moved from January 1, 2012 to January 1, 2019. The EB-1 priority date for China improved slightly from February 1, 2022 to August 1, 2022. For all other countries the priority date under the EB-1 category is once again current.

While the news is not as bad as it could have been had USCIS continued to use the “Final Action Dates” chart, it is now apparent that priority dates under the EB-2 category will remain retrogressed for all countries for the foreseeable future. With this in mind it is imperative that anyone interested in obtaining permanent residence through an EB-2 NIW file their case as early as is feasible to obtain their priority date.

We welcome any inquiries regarding the filing of your EB-1, EB-2 or Adjustment of Status.

USCIS to allow I-765 EAD with an approved I-140 due to I-485 Retrogression. USCIS just issued a Policy Alert that now allows for an I-765 EAD if the applicant has an approved I-140 even if the I-485 priority date is not current. This is an interesting development and that will allow certain individuals to continue to reside and work in the U.S. However, what appears to be a very promising new development, has significant restrictions and ultimately will be of little value to very few people.

The USCIS Policy Manual was updated with the newly added Chapter 3 (which had been previously reserved) to address the Compelling Circumstances Employment Authorization.

To qualify under this new policy there are several prerequisites. To qualify for a Compelling Circumstance EAD the applicant must first be the beneficiary of an approved I-140. In addition the applicant must be in valid status and hold an E-3, H-1B, H-1B1, O-1, or L-1. Given this requirement the practical application of the Compelling Circumstance EAD becomes extremely limited. For example an individual who already has an H-1B and an approved I-140 is not subject to the six year limitation and can stay on an H-1B while waiting for their priority date. An individual on an O-1 can renew the O-1 indefinitely and would likely not be in a position to need an Compelling Circumstance EAD.

Additionally, the Compelling Circumstance EAD does not provide any lawful status to the holder, it simply authorizes them to remain in the U.S. to work without accruing unlawful status. This means that the beneficiary will not be able to adjust status, because they will have no status to adjust from. It also means that they will not be able to travel as they will have no status upon which to be admitted upon their return to the United States. In order to obtain a green card once their priority date becomes current they will have to do so through Consular Processing.

There may be rare instances where a Compelling Circumstance EAD is necessary and in that event the beneficiary will need to set forth a persuasive argument with supporting evidence that they are deserving of a Compelling Circumstance EAD. USCIS has provided the following examples:

• Serious illness/disability: The principal applicant or their dependent faces a serious illness/disability that substantially changes employment circumstances, or reduces their ability to continue previously approved employment.

• Employer dispute/retaliation: The principal applicant is involved in a dispute regarding their employer’s illegal or abusive conduct, and the employer retaliated against them.

• Substantial harm to the applicant: The principal applicant cannot extend or otherwise maintain status in a timely manner, or obtain another nonimmigrant status, and would suffer some kind of substantial harm as a result (financial or otherwise).

• Significant disruption to the employer: The principal applicant’s departure would cause the employer substantial disruption due to the applicant’s knowledge or experience.

This is not an exhaustive list and USCIS intended that there be flexibility in making a determination of compelling circumstance. “DHS did not establish a bright-line definition because such a definition could limit DHS’s flexibility to recognize the various circumstances that could be considered compelling.”

If the beneficiary qualifies for a Compelling Circumstance EAD, the new policy additionally allows for the dependents of the beneficiary to obtain an EAD as well.

If you feel a Compelling Circumstance EAD is something that may be of benefit to you, please feel free to contact us for more detailed information.

USCIS just released the Visa Bulletin for April 2023. The Final Action Dates are to be used for the April Visa Bulletin. Under the Final Action Dates, the EB-2 priority dates for all countries have retrogressed. The EB-1 priority dates for China and India have once again retrogressed.

The EB-2 priority dates for all countries other than China and India have retrogressed from December 1, 2022 to July 1, 2022. Meaning if your I-140 was filed after July 1, 2022, starting April 1, 2023 you will no longer be able to file an adjustment of status until such time as the priority dates move forward in the future. We anticipate based on what limited information is available that priority dates won’t become current under EB-2 until the beginning of the new fiscal year in October.

The EB-2 priority dates for China have changed from July 18, 2019 to June 18, 2019 and India has gone backward from May 1, 2012 to January 1, 2011

The EB-1 priority dates for China and India both retrogressed from June 1, 2022 to February 1, 2022. The EB-1 priority dates for all other countries remain current.

For persons who have an EB-2 I-140 pending that was filed between July 1 and December 1, 2022 you only have a few days to get everything prepared and filed. You do not have to provide the I-693 medical exam when you file and can provide it later, which will save some time and allow you to get the I-485 timely filed.

If you are on a J-1, an F-1, or OPT you need to carefully consider your timeline with respect to filing the I-485 as it could negatively impact your ability to obtain or renew your status or obtain work authorization. For those of you whose status will expire between now and October, you should seriously consider filing your adjustment of status now.

USCIS has just announced that it is implementing the final phase of the premium processing expansion for EB-2 NIW I-140 petitions. Effective January 30, 2023 a new NIW can be filed with premium processing. If you have a pending NIW petition you can request premium processing, regardless of when your case was filed.

Until the EB-2 category for adjustment of status becomes current again, in most cases, it probably doesn’t make sense to file a new NIW with premium processing. However, NIW petitions filed prior to December 1, 2022 are current for adjustment of status purposes and may benefit from premium processing depending on individual circumstances.

If you are interested in pursuing premium processing or are uncertain as to whether it makes sense to do so, please feel free to contact us.

The recently released Visa Bulletin for December 2022 indicates that the EB-2 visa category will retrogress starting December 1, 2022. This means that concurrent filing will no longer be available for EB-2 based I-140 filings. The priority date under Dates of Filing is now December 1, 2022. The EB-2 priority dates for India and China remain unchanged.