The U.S. Department of State (DOS) published the Monthly Visa Bulletin for September 2018, reflecting worldwide retrogression for EB-2, EB-3, and Other Workers, which follows previous retrogression in the EB-1 category. This retrogression may create a temporary opportunity during the month of September 2018 for certain beneficiaries of approved Form I-140 Immigrant Petitions to secure a three-year extension of H-1B status after the six-year maximum, which may not have been available to them otherwise as outlined below.

September 2018 Visa Bulletin

For the August 2018 Visa Bulletin, Foster reported worldwide retrogression for the EB-1 category for all chargeability areas. The September 2018 Visa Bulletin now shows worldwide retrogression across the EB-2, EB-3, and Other Workers categories. The retrogression is attributed to a high demand overall for immigrant visas. This retrogression is anticipated to be temporary, lasting until the beginning of the next fiscal year on October 1, 2018. The EB-5 category remains current for applicants born in all countries except for mainland China and Vietnam. EB-5 availability for China and Vietnam remains backlogged to August 8, 2014, which is only one week forward from the cut-off date in the June 2018 Visa Bulletin.

Applicants may file their applications or have their applications finally adjudicated when their priority date is “current.” The priority date, which is typically the date the labor certification or immigrant petition was originally filed, is said to be “current” when the priority date is earlier than the posted cut-off date in the Monthly Visa Bulletin, based on the person’s immigrant preference category and country of birth.

Opportunity for Three-Year H-1B Extensions under AC-21

Certain beneficiaries of approved Form I-140 Immigrant Petitions extending H-1B status after the six-year maximum may wish to review the possibility and benefits of securing three-year, rather than one-year extensions, during the month of September 2018.

Under AC-21 §106, one-year extensions of H-1B status beyond the six-year maximum are generally possible when a Labor Certification Application (LCA) or Form I-140 Immigrant Petition has been pending for more than 365 days under the EB-1, EB-2, or EB-3 categories. Under AC-21 §104, three-year extensions of H-1B status beyond the six-year maximum are possible for beneficiaries with an approved Form I-140 Immigrant Petition, who are unable to file adjustment of status due to per-country limitations. Whereas before only China and India were commonly backlogged in immigrant visa availability due to per-country limitations and could secure three-year extensions, three-year H-1B extensions may be filed during the month of September 2018 for beneficiaries from other countries who are now unable to file adjustment of status petitions.

Consult with your Foster immigration attorney if you believe you may benefit from securing a three-year H-1B extension during the month of September 2018, before immigrant visa availability is anticipated to normalize on October 1, 2018.

Applicants who will become eligible to file immigrant visa applications in September should also initiate applications now with their Foster immigration attorney to plan for the earliest possible filing date in the month of September.