Perhaps due to USCIS’ recent updated guidance on EB-1 (A/B) immigrant visa evidence or the seemingly endless wait times for citizens of India under other immigrant categories, our office is experiencing renewed interest in the EB-1 immigrant visa program. Reserved for those of extraordinary ability (A) and for outstanding professors or researchers (B), beneficiaries are given first preference in the waitlist for available immigrant visas (green cards). For those non-immigrants from India who filed their I-140s under EB-2 (second preference) and continue to wait a decade or more to file adjustment of status or consular processing to permanent residency (green card), or for those just starting their immigrant processes, the idea of qualifying for EB-1 and being first in line is understandably appealing.

Historically, the wait time for citizens of India approved under the first preference category has been immediate, or at least a very short wait. This abbreviated wait time made it worth the demanding effort needed to prove eligibility. However, in 2023, the wait time increased to over a decade. Fortunately, this will be shortened significantly in October, allowing those with priority dates (I-140 filing date) from July 2019 and earlier to file[1]. Yet, this is still a significant wait and quite unprecedented. With the change has come confusion, revealing to our office a general misunderstanding of the visa type.  The purpose of this article is to clarify that the EB-1 visa is an immigrant category, which should not be confused with its non-immigrant visa counterparts.

The EB-1 visa does not allow immediate entry into the United States by providing nonimmigrant status or work authorization. Rather, it is the first step of the immigrant process leading to permanent residency; it is an I-140 approval under the first preference category, exempt from the labor certification (PERM) process, that allows an individual to apply for their green card when their priority date becomes current under the visa bulletin. Unless the individual is in the United States in a nonimmigrant visa category, they will not be admitted until they have completed the next step and obtained their green card.

This means that, at present, EB-1 visas are not an alternative to a non-immigrant visa if immediate work authorization is the main goal. For relatively quick entry into the United States – whether to avoid the need of a job offer, to avoid employer involvement, or to avoid the labor certification process, for example – EB-1 visas are not the answer until the wait times go back to normal.

There is still a major incentive to obtain an EB-1 approval, as the wait times are significantly shorter (and should continue to shorten), but for entry into the United States, individuals should rely on nonimmigrant visa categories. Possible categories include O-1 (extraordinary ability) and H-1B (specialty occupation), though others are also possible. Since it is not possible to file for the H-1B cap until early 2024, one might search for jobs at a non-profit entity, which would be exempt from the H-1B cap. O-1 is an option for for-profit entities; there is no numerical cap, and the petition can be filed at any time of the year.

If you are interested in exploring any of these options, would like to proceed with determining EB-1 eligibility, or both, please contact our team for further assistance. Our talented and experienced team of professionals works with our clients in their specific situations, working together to ensure they get the right advice.

 

[1] Although individuals with priority dates in 2019 will be permitted in October to file for permanent residency, only cases with priority dates from January 2017 and earlier have visas available to conclude the processing (final action).

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