How the Visa Bulletin Works for EB-1 First Preference Cases

The first preference is the employment-based category most likely to show current in the Visa Bulletin, and that single fact drives much of the strategy around EB-1 petitions: it is why people file a difficult EB-1A alongside an easier NIW, and why a researcher’s institution may push an EB-1B rather than a PERM-based EB-2. But EB-1 is not always current, especially for applicants born in the countries with the heaviest demand, and the Visa Bulletin for EB-1 moves in ways that catch people off guard. Our EB-1 green card overview notes that availability depends on country of birth; this post explains the mechanics behind that sentence.

How EB-1 visa numbers are allocated

Congress sets an annual worldwide limit on employment-based immigrant visas and divides it among five preference categories. The first preference receives 28.6 percent of that worldwide total, plus any numbers not used by the fourth and fifth preferences. The second preference receives the same percentage plus whatever the first preference does not use, and so on down the ladder. When EB-1 demand is below its allocation, unused numbers fall down to EB-2; when it is above, EB-1 itself backs up.

Layered on top is the per-country limit. No single country of birth may receive more than seven percent of the combined family and employment preference total in a year, unless numbers would otherwise go unused. Country of birth, not citizenship, controls, with a limited exception allowing a spouse’s country of birth to be used. This is why an applicant born in a high-demand country can face a wait in EB-1 while a colleague with an identical record and a different birthplace proceeds immediately.

The two charts in the Visa Bulletin for EB-1

Each monthly bulletin contains two charts for employment-based categories.

• Final Action Dates: a green card or immigrant visa can be issued only if your priority date is earlier than the date shown for your category and country of birth. The letter C means current, and every priority date qualifies.
• Dates for Filing: an earlier cutoff that the Department of State publishes to let applicants assemble documents, and that USCIS may allow adjustment applicants to use for filing Form I-485 in a given month. USCIS announces each month which chart applies.

Your priority date is the date USCIS received your I-140. Our post on priority date versus filing date explains the distinction in detail. For EB-1, the typical pattern is that most countries show current in both charts, while one or more high-demand countries show specific cutoff dates that advance unevenly.

Retrogression and why it happens

Retrogression is the movement of a cutoff date backward. It happens when the Department of State sees demand exceeding the numbers available for the rest of the fiscal year, which runs from October 1 to September 30. In the final months of a fiscal year, categories that were current can suddenly show cutoff dates, and even applicants from countries that are normally current can be affected when the worldwide EB-1 number is exhausted. On October 1 the new fiscal year’s numbers become available and dates often move forward again.

What retrogression means for you depends on where you are in the process. If your I-485 is already filed and pending, it stays pending; it simply cannot be approved until your date is again earlier than the Final Action Date. Your employment authorization and advance parole can be renewed while you wait. If you have not yet filed the I-485, you cannot file until your date is current under whichever chart USCIS designates, and your I-140 approval and priority date wait with you. Our post on what happens after EB-1 I-140 approval covers that stage.

How the Visa Bulletin shapes EB-1 strategy

Several decisions follow directly from the bulletin.

• File when EB-1 is current for you, even if the I-485 could wait, because concurrent filing of the I-140 and I-485 secures the EAD and advance parole and protects against a later retrogression.
• If you qualify for EB-1A and EB-2 NIW, an approved petition in each category gives you a priority date in each, and you proceed on whichever becomes current first. Our EB-2 NIW green card page covers the second preference.
• If you were born in a high-demand country and your spouse was not, cross-chargeability to your spouse’s country of birth can remove the backlog entirely.
• A priority date from an earlier approved employment-based I-140, including an EB-2 or EB-3 petition filed by a former employer, is retained for a later EB-1 petition, so a long-ago PERM case can put you at the front of the EB-1 line.

The bulletin also affects whether the EB-1 is worth its higher standard at all. When both EB-1 and EB-2 are current for your country, the harder EB-1A buys you little over an NIW, and the decision can rest on the merits alone. Our broader post on the fastest ways to a green card puts EB-1 in context with the other routes, and the firm’s talent and extraordinary ability visa overview describes how we sequence filings around it.

Check the bulletin for the month you plan to file, not the month you started preparing. Dates can move in either direction between the two.

If you are planning an EB-1 case and want to know how the Visa Bulletin affects your timing, Capitol Law Partners can review your country of birth, priority dates and status options together. Schedule a consultation.

This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is formed by this communication.

Attorney Cagatay Ersoy. Practical strategy for founders, investors, and growing companies.

Need help with this topic? See our EB-1 green card petitions page or schedule a consultation.