August 16, 2023

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The Department of State (DOS) announced a significant retrogression of EB-1 visa Final Action dates for Indian applicants. This retrogression, which will last more than ten years, will considerably set back visa applications for highly-skilled workers from the country.

According to the August 2023 Visa Bulletin issued by the DOS, the EB-1 India Final Action date will retrogress by ten years and one month to January 1, 2012. However, the DOS reminded interested parties that this should not prove surprising. The Department released a Visa Bulletin in May 2023 that warned an increase in immigrant visa use would likely result in a retrogression for the EB-2 Final Action Date.

The Department also stated that the development happened because of oversubscriptions in the EB-1 category. Previously, Indian applicants may have qualified for unused visas allocated to applicants from other countries under INA 202(a)(5). However, increased demand has used all visas, unlike in previous years.

These Final Action dates dictate when an immigrant visa number becomes available and when an applicant may receive a green card. Applicants must have a priority date earlier than the one listed in the most recent Visa Bulletin to file for an adjustment of status. In addition, this requirement varies based on the applicant’s preference category and country. 

In this case, the largest retrogression affects the EB-1 category for priority workers. Employers rely on this category to find those with extraordinary abilities. These are highly-skilled workers who have been in high demand in recent years.

This high usage and demand have affected India and other countries previously listed as “current” on the bulletin. As such, these countries have received a Final Action cutoff date of August 1, 2023. However, the Final Action date for China remains February 1, 2022, for EB-1.

However, the DOS noted that the new cutoff date for Indian applicants would likely return to the date listed in the July 2023 Visa Bulletin. The original cutoff date stood at February 1, 2022, or earlier. This decision would appear in the October 2023 Visa Bulletin, which starts the federal government’s new fiscal year. Whether this happens depends on the demand the Department receives and the annual limit for employment-based visas in the new fiscal year.

Another challenge facing employers of foreign national workers is completing the employment eligibility verification (Form I-9) process. Employers must complete this process with every new hire, regardless of immigration or citizenship status. Unfortunately, it has proven complicated due to the ever-shifting regulations, and many documents workers may present. One way to help ensure compliance is to incorporate an electronic I-9 management system into the hiring process. This system can provide step-by-step guidance, reminders, electronic storage, and more to help employers remain compliant.

Ensure compliance today by switching to an electronic I-9 management tool with I-9Compliance.

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