EB-1 Cut Off Expected for India and China
The Employment-Based 1 Category is usually one of the categories that you can rely on being current, meaning that someone with an approved I-140 in EB-1 can file for adjustment of status or for permanent residence through the consulate abroad. However, that is going to change for the remainder of the Fiscal Year for China and India. Charlie Oppenheimer, the guru of Department of State’s visa availability, forecasts that EB-1 for China and India is going to retrogress back to January 1, 2010 when the visa bulletin is released for August 2016. The EB-1 dates for China and India will reset on October 1, 2016, the first day of Fiscal Year 2017. The reason for retrogression is that there are strict visa quotas for each category and preference that cannot be exceeded each year.
Backlogged in India: Nonimmigrant Visa Interview Times
If you are planning on having a nonimmigrant visa interview at a US consulate in India, make your arrangements early. All of the US consulates in the country are badly backed up, with waiting times of:
Chennai – 75 days
Hyderabad – 93 days
Kolkata – 96 days
Mumbai – 88 days
New Delhi – 100 days
These are the average wait times for nonimmigrant visas outside of the B, F, and J category, which have different procedures.
There are possibilities for expediting a nonimmigrant interview, provided there is a family or business emergency. Another option could be to process the nonimmigrant visa in a different country’s US consulate, as a third country national.
USCIS announced a new rule today, February 24, 2015, allowing H-4 visa holders in certain situations to obtain work authorization. Work authorization would not change their H-4 dependent status on an H-1B principal. Successful applicants can apply for an employment authorization card on May 26, 2015. Please note that employment authorization applications can often take three months.
Work authorization is permitted for H-4 visa holders who have an H-1B principal with a pending I-140 (employment-based application) or with an approved I-140 under AC21. AC21 104(c) and 106(a) allow for H-1B visa holders to extend their status with a pending or approved I-140 application for permanent residence. Individuals from countries such as India, China, and the Philippines have excruciatingly long waits for their priority date, even when they are approved for their Green Cards through EB-2 or EB-3 categories. During those waits, H-4 visa holders will be able to work.
This will bring much relief to H-4 visa holders and should help local economies benefit from talented individuals who can now contribute. This proposal was announced with the series of Executive Actions from November 20, 2015 that primarily focused on deferred action for parents of Americans and expanded DACA. However, there are also executive orders that have more support, such as allowing certain H-4 visa holders to obtain work authorization and employment.
November 2014 was not the first mention of permitting H-4 work authorization. Over the summer of 2014, a Notice and Comment period generated enormous support for the proposal, with H-4 and H-1B visa holders voicing their espousal of such a rule. Opposition was minor and consisted of fear that H-4 visa holders would be discriminated against and forced into menial labor positions.
The Law Offices of Andrew Wood applauds USCIS for announcing this rule and looks forward to assisting H-4 visa holders obtain employment authorization. If you would like to learn more about how we can assist you, please drop us a line.