Member Perspective: EB-5 versus EB-2 and EB-3

My Priority Date Under EB-2or EB-3 Is Current, Should I Continue My EB-5 Petition?

By Rebecca S. Singh, Esq., Partner and Senior Attorney, Mona Shah & Associates Global

This is a member perspective and the views of the author are their own and do not necessarily reflect the views or position of IIUSA.

For the past two years, EB-5 developers found themselves a niche domestic market—the H1-B candidate. Visa retrogression for countries like India drove many to seek out EB-5 investments as a faster way of attaining permanent resident status.  However, since the release of the October 2020 Visa Bulletin by the Department of State (DOS) on September 24, 2020, investors from this niche market have begun to look at EB-5 a little hesitantly. The reason for this is that the dates for the employment-based categories, EB-2 and EB-3, have jumped significantly, perhaps giving the impression that the long visa wait time may be coming to an end. However, the dates have vaulted under Chart B, Dates for Filing.  Under the EB-3 category, the date advanced from February 1, 2010 to January 1, 2015, and from August 15, 2009 to May 15, 2011 under the EB-2 category. In contrast, the dates under the Final Action Dates (Chart A) only advanced by a few months.  Although welcoming news for India-born applicants, there is much yet to consider.

The Significance of the Advancement

Since October 2015, DOS has referred to two cut-off dates for immigrant visa processing: (1) Final Action Dates, known as Chart A, and (2) Dates for Filing, referred to as Chart B.[1]  If an applicant’s priority date (PD) is current under Chart B, the applicant and his or her family can apply for adjustment of status.  Once the I-485 adjustment of status application is filed, concurrently with an I-765 and I-131 applications, the applicants can obtain unrestricted employment authorization (“EAD”) and advance parole (“AP”) for travel within 90 days. Currently, USCIS issues a combined authorization card, which includes both of these employment and travel benefits.

What is significant about the October 2020 Visa Bulletin is not just the movement of the dates, but that USCIS is actually accepting filings of I-485 adjustment of status applications.  This is one of the few and rare occasions that USCIS has used Chart B in the past five years.  This will allow EB-2 and EB-3 applicants to port to new employment in similar occupations after 180 days, gaining more flexibility for the applicant and his or her family, rather than extending the H1-B for yet another year…

 

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