Potential Visa Retrogression Stirs Protest Against EB1C

A prediction from Charles Oppenheim about EB-2 retrogression has sent a shock wave among I-485 applicants, likely prompting a protest against the much easier venue classified as EB1-C for international managers.

Mr. Oppenheim, Chief of the Visa Control and Reporting Division at the Department of State, announced at the AILA Midwest Regional Conference on March 16 that EB-2 priority dates for India and China could potentially retrogress all the way back to August 2007! Any this may happen during either the May or June 2012 Visa Bulletin.

His prediction, always considered trustworthy given his position, caused widespread frustration among EB-2 filers. It seemed particularly disappointing because the category’s cutoff dates have been advancing rapidly for months. However, many people were kind of expecting the bad news, since Mr. Oppenheim did warn about potential retrogression at some point this year. So it was his other prediction that appeared to be hurting: No EB1 spillover to EB2 this year.

A visa “spill-over” means that unused visa numbers for a given EB preference are re-allocated to the next category. In recent years, spillover from EB-1 has helped the EB-2 category tremendously. But Mr. Oppenheim believes that all EB-1 visa numbers will be consumed within the category this year. On top of that, due to the government’s heavy promotion of investor visas, the EB-5 category will likely exhaust their allotment as well.

So all of these have painted a bleak future for EB-2 for the remainder of FY-2012. Coincidentally, there is now a petition proposing a thorough investigation into EB-1C, reserved for multinational managers or executives. A group has set up a petition to Congress: Stop EB1 C ABUSE and FRAUDULENT filing. Here is what the petition says:

We would like to appraise you of a particular area of United States Immigration law that has a huge potential of fraud and misrepresentation along with being unfairly biased in favor of the people who choose to abuse it. We are talking about the Employment-based first preference category EB1C (International Managers). As you are already probably aware, the requirements for eligibility in that category is just a year of overseas managerial experience in a company that conducts business in both US and abroad. We are sure you will agree that compared to the fair and stringent requirements of EB1A (persons of exceptional ability) and EB1B (outstanding researchers), this is a rather simple qualification to prove. Moreover it opens up avenues for fraud and misrepresentation particularly by overseas companies doing business in USA to unfairly take advantage of this simple requirement.

In some cases, a journey from L1 visa to EB1C green card does appear to be much shorter, compared to those who studied in the U.S. for a degree and then had to wait many years for their EB2 or EB3 green cards. On the other hand, there are indeed people who worked really hard overseas, climbed up the ranks, and eventually got transferred to the States as managers. So I hope the petition, if fruitful, will help block the loopholes where (staffing) companies simply assign manager titles to people for the purpose of gaining an advantage in immigration, rather than closing the door for legitimate candidates.

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