Sunday, September 26, 2010

Foresight and Forewarning: EB-1 Strategy Necessary for Chinese and Indian Extraordinary Ability Professionals

Shortly after the Immigration Act of 1990 (IMMACT 90) was enacted into law on November, 29, 1990, Peter Larrabee and I wrote an article about the immigration requirements for highly educated and accomplished persons. In many respects, IMMACT 90 was ahead of its time, as it provided for visa categories, and most importantly, visa numbers for the best and the brightest persons from a variety of disciplines from around the world. Employment-based first preference or “Priority Workers” were afforded first position to acquire 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Just as importantly, those persons who qualified as extraordinary ability were also entitled to the first of their nation’s per country’s visa numbers amounting to 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620.

I recall that it was apparent to us in 1990 that based on the legacy INS’ adjudication of the previous exacting adjudicatory standards for Department of Labor’s Schedule A Group II for persons of exceptional ability in the sciences, arts and performing arts, that the employment-based first preference numbers would likely never be exhausted in a particular fiscal year for the IMMACT 90 EB-1 category. Two decades later, it seems we were correct in our assessment and it remains the one bright spot in an increasingly dire situation for highly-educated Chinese and Indian professionals working in the U.S.

The USCIS Ombudsman issued a pessimistic prediction for aspiring US immigrants who are natives of India in the 2009 Annual Report:

“Absent legislation providing for additional visa numbers, the Ombudsman estimates that some individuals under the “India” category in the Visa Bulletin now may wait at least 10 years to complete immigration processing and obtain a green card. This estimate assumes maximum annual preference category and per country usage. If these projections are correct, affected individuals will spend many years of their working lives as applicants for green cards, i.e., as neither temporary workers nor lawful permanent residents.”

Id. at 16

In the 2010 Ombudsman Report there was more bad news for EB-3 Indian professionals:

“Finally, considering the data contained in the December 11, 2009 I-485 Inventory Report, the Ombudsman notes that out of 141,019 EB-3 green card cases queued-up worldwide, approximately 43 percent are chargeable to India, and 64 percent of the cases with priority dates before 2004 similarly are chargeable to India. Without attempting to predict future EB-3 wait times, based on the high percentage of applicants from India in queue, the data suggest that many thousands of green card applicants of Indian nationality will be waiting years, if not decades, for the approval of their green card cases.”

Unfortunately, these dismal predictions also ring true for Chinese professionals.

USCIS Forewarning

The USCIS has taken steps to publicize its policy in the adjudication of extraordinary ability I-140 petitions. With its publication of its Interim Policy Memo “Evaluation of Evidentiary Criteria in Certain Form I-140 Petitions,” (August 18, 2010) and the proposed publication of an EB-1 request for evidence form, it is clear that EB-1 policy will be a hot-button USCIS issue, which rarely bodes well for applicants.

Nevertheless, EB-1 extraordinary ability petitions are being approved. In the last reported year, the CIS approved 16,806 EB-1 petitions nationwide allowing for those persons to immigrate an additional 24,118 dependents. By comparison, the less elevated advanced degree professional/exceptional ability EB-2 classification saw 45,552 total immigrants under its authority, despite similar numerical and per country limitations. The crucial difference: First preference took first.

This is the first of a series of blogs on the Extraordinary Ability EB-1 Category issues.