EB-1 India: Taking a Dive and Working the Refs

This post (written in the middle of the 2022 World Cup in Qatar) discusses the challenges of EB-1 processing in a world where lots of petitioners are "taking dives."

Thank you for reading this post! I started this newsletter in July 2022, and I now have over 2,500 subscribers.

If you know of anyone who is trying to understand Employment-Based (EB) immigration, or commiserate on the frustrations of EB immigration, please tell them about my newsletter!

Many of the posts are free although some are subject to a paywall (like this one).

I hope you find some value in my writing.

---

###

If you are a fan of the beautiful game, this has been a great month. The World Cup only comes every 4 years, and this World Cup has been full of surprises.

There is, of course, nothing beautiful about U.S. immigration law. It is a mess, and it seems to be getting worse.

And while 2022 is an exciting World Cup year, 2022 is also a year that in immigration law has seemed to make some people, including some Indian-born H-1B workers, go slightly mad. I base this assessment on inquiries I get from people and from projects I am asked to review by clients and other lawyers. I am not sure why things have gotten so extreme this year, but here is my best theory to explain it -

• People born in India seeking to immigrate through the employment-based immigration system face extreme backlogs. These backlogs are related to “per country” quotas. The backlogs are reflected in the monthly Visa Bulletin published by the U.S. Department of State.

• The Visa Bulletin backlogs in EB2 and EB3 India, which negatively impact people born in India, have existed for many years. People have known and been frustrated by the backlogs for many years.

• From the beginning of time through 2016, I would say the frustration with the Visa Bulletin backlogs for India and the interest in EB1 as an alternative to the backlogs was ‘normal.’ Occasionally people would try for longshot EB1 filings but for the most part people just waited patiently in the EB2 and EB3 India queues and hoped things would improve.

• From January 2017, to December 2020, when Trump was President, the whole world of immigration, including Indian H-1Bs, was in a near perpetual state of shock, with so many hostile policy changes. Given all the turmoil, I don’t think people were as focused on longshot EB1. They were just focused on getting H-1Bs approved and extended and generally not facing denials. There was a general feeling that the Trump Administration was not the kind of Administration where ‘pushing the envelope’ (or taking a dive) was a winning approach. If anything, this was the era when Indians were applying for Canadian immigration.

• Since President Biden has been President in January 2021, to the present time, Indians have faced the asinine travel ban followed by historic, terrible backlogs in obtaining visa stamps at U.S. consulates. The U.S. consulates have been backed up for months and to this day there are challenges to get visa stamps. Overall, international travel has been greatly impacted by the pandemic and the post-pandemic re-opening.

• At the same time, since Biden has become President, a record number of Indians have received green cards through EB immigration (thanks to the FB-to-EB spillover effect and availability of a record number of EB immigrant visas in FY2022). So more and more people waiting for a green card are seeing their countrymen receive green cards and to enjoy the benefits and freedom associated with U.S. permanent resident status.

• Also in the mix over the last couple years is a relatively new cottage industry of “consultants and agencies” that has arisen to promote EB1 as a solution to the Visa Bulletin woes of EB2 and EB3 India.

• Another data point that has encouraged desperation: The electronic H-1B cap lottery was run only one time in 2022, unlike in calendar year 2021 when the lottery had 3 drawings, or in 2020 when it had 2 drawings.

• A final point: There is now at the end of 2022 more concern about layoffs particularly in the tech industry, and longtime H-1B workers are increasingly insecure about their employment stability.

The above seems to have created a perfect storm of frustration and anxiety, such that a lot of Indian H-1B workers are just extremely frustrated with their ongoing wait for a green card and the slow/non-existent movement of the Visa Bulletin cut-off dates. So some Indian H-1B workers are increasingly willing to try extreme things to solve the problem of waiting.

The extreme frustration and anxiety has, in my view, pushed too many Indians to pursue EB1, including many I believe who have bad profiles for the category.

The result of the strong interest in EB1 by Indian-born H-1B workers (and to a lesser extent F-1 or J-1 visa holders) has been a flood of filings such that USCIS adjudicators have become seemingly, increasingly hostile to all filings and indifferent to evidence.

It would appear that some USCIS adjudicators cannot determine which cases have merit and which do not, and their response seems to be increasingly to push back on nearly everything. The Premium Processing Unit in Nebraska seems to be most indifferent to evidence but there are anecdotal examples at both NSC and TSC.

This is the environment I see now in December 2022 and unfortunately there is no reason to believe things will improve in 2023.

This is the environment that brings me to my metaphors of “taking a dive” and “working the refs” - discussed herein.

---

The rest of this post (after the paywall) will discuss the following:

• What is “taking a dive” in the context of EB1?

• How is the current situation impacting “the refs”?

• The Rise of the Consultants and Agencies.

• Practical Considerations for H-1B Workers.

• Practical Considerations for in-house Case Managers.

• Practical Consideration for Attorneys.