The August Visa Bulletin was just released by the U.S. Department of State. Unfortunately, there are some notable retrogressions in employment-based (EB) categories, with EB-3 India moving to January 1, 2006 (from July 1, 2009) and EB-2 and EB-3 from all other countries retrogressing to January 1, 2017 (from no backlog) and July 1, 2016 (from no backlog), respectively.
Perhaps most notable is the EB-1 (first preference) category, where the cut off dates for all countries of chargeability (except India) have retrogressed substantially, to July 1, 2016, representing a backlog of a full 3 years (from April 22, 2018). EB-1 India remains oversubscribed at a January 1, 2015 cutoff date (no movement).
If the EB-1 backlogs continue to expand over the coming months, or even remain static, it will create collateral damage for those EB-1 executives and managers who don’t have the benefit of an additional 3 or 4 years remaining in L-1A status to wait to file the final step of their EB-1.3 green card process. It is also advisable to keep a closer eye on the max-out date of L-1B specialized knowledge workers in light of the retrogression of the EB-2/EB-3 categories.
On that basis, we are running analytic reports for each of our business clients to identify L-1 employees who may be impacted. We will compile a list of those employees and will contact HR to discuss both near-term and longer-term strategies for affected employees. In addition to the recommendation that we “wait and see” what happens with the backlogs at the start of the next fiscal year on October 1, 2019, one of our near-term recommendations is to add these L-1 employees to the H-1B cap filing list for the upcoming fiscal year on April 1. Depending on the individual, we may also want to consider alternative visa classifications, including the O-1, E-3 or TN. One of our longer-term recommendations may be to consider starting a PERM-based green card process for certain L-1 individuals, depending upon country of origin and other factors.
While the August Visa Bulletin itself states this may only be a temporary retrogression due to increased demand, there is simply no guarantee that the backlogs will return to “normal” upon the start of the new fiscal year. On that basis, we are working to formulate a plan for each of your employees who is potentially affected by these retrogressions.
If you have any questions about visa retrogression, or would like to discuss appropriate alternatives to the L-1 category, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.
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