Indian EB-1 Retrogression, EB-5, and Alternative Options for Indians on Non-Immigrant Visas

July 17th, 2023 Kyle Behring


The Visa Bulletin for August 2023 was published yesterday. The final action date retrogressed by 10 years for Indians under the EB-1 visa preference. Considering the deep retrogressions for Indians in the employment-based visa preferences, many are actively seeking alternative immigration options to overcome the challenges posed by the backlogs. Below are strategies to help Indians in the United States obtain a faster means to achieving permanent residence.  

EB-1 Retrogresses 10 Years for India 

The retrogression of the EB-1 category for Indian immigrants has significant implications for those awaiting their green cards. Some key points to consider include: 

  • Increased Waiting Period: Indian EB-1 visa applicants with priority dates after January 1, 2012, may experience an extended waiting period before their green card applications can be processed. 
  • Priority Date Retention: Many Indian applicants in the EB-1 category have priority dates from 2012 to 2015 due to priority date retention based on previously approved petitions in the EB-2 or EB-3 categories. These applicants will be subject to retrogression and may face additional delays. 
  • Fiscal Year Quota Reset: Annual visa quotas and country caps will reset after the end of the fiscal year on September 30, 2023. We anticipate that final action dates will move forward again to February 1, 2022.  

While is it likely for this dramatic retrogression to be short-lived (going back to Feb. 1, 2022), it is essential for Indian applicants to monitor updates from the U.S. Department of State to stay informed about any potential advancements or further retrogressions. According to the Visa Bulletin, demand for EB-1 by the rest of world applicants have grown, hitting a retrogression as well this month, with a priority date of August 1, 2023. So long as Rest of World remains retrogressed, then India and China cannot anticipate substantial improvement. We’ll have a better idea come mid-September when the October Visa Bulletin is released. Be sure to subscribe to Behring’s You EB-5 Channel to stay up to date on visa backlogs. 

EB-5 Offers an Alternative Strategy: Getting the EAD in 90 days through  

Concurrent Filing of the Adjustment of Status Application 

Indians who hold non-immigrant visas, such as the H-1B, L-1, E-2, TN, and F-1 categories, can adjust their immigration status immediately by filing Form I-485 concurrently with Form I-526E. This process allows individuals to transition from their non-immigrant visa status to permanent residency (green card) status without leaving the United States. 

Advantages of Concurrent Filing 

  • Immediate Ability to File Status Adjustment: By concurrently filing Form I-526E and Form I-485, individuals can speed up changing their immigration status, eliminating the need to wait for for I-526 approval before filing to adjust status. 
  • Maintaining Legal Status: For individuals with non-immigrant visas that are nearing expiration, concurrent filing provides a viable option to extend their stay in the United States and avoid potential disruptions to their employment or educational pursuits. 
  • Avoiding Child Age-Out:  
  • Employment Authorization in 3 months: 
  • Visa Free Travel Permit (“Advance Parole”) in 6-8 months: Concurrent filing allows individuals to apply for an Employment Authorization Document (EAD) and a travel permit. This enables them to work legally in the United States and travel internationally while their adjustment of status application is pending. 

EB-5 and its Benefits for Indians 

In addition to the concurrent filing option, the EB-5 Immigrant Investor Program remains an attractive choice for Indian investors seeking a faster path to permanent residency. While the EB-1 category requires individuals to demonstrate extraordinary ability, be outstanding professors or researchers, or be multinational executives or managers, the EB-5 program simply requires a qualifying investment in a U.S. project that creates full-time US jobs. Learn more about the EB5 Program here.. 

Contact Behring to Learn More about Alternative Strategies to Mitigate Retrogression 

Book a free call with us

Indians can have a hard time getting through the EB-1 backlog. But don’t forget that it’s not the only option. People with non-immigrant visas who want to change their status quickly can use concurrent filing as a quick fix.

The EB-5 program is an attraction for Indian investors who want to live in the US permanently. It’s more than an alternate route; it’s a high-velocity highway that opens right past all the typical roadblocks associated with green card.

Think of these choices as your own guide through the complicated immigration maze. With these in your toolbox, you won’t just make it through the system, you’ll beat it, making the way for a safe future in America.