u/eager-desi

Hi All

My first post in Reddit and I thank everyone for sharing their experiences and thoughts in the community.

As an EB1A approved individual waiting forever for priority date to be current, I am disheartened to see the incorrect interpretation of this priority date porting regulation.

Instead of arguing about the priority date porting into EB1 visa category, I request anyone interested in revoking or removing this priority date porting into EB1 category- send an email to USCIS as below:

To email address : policyfeedback@uscis.dhs.gov

Subject: Feedback on Regulation 8 CFR 204.5(e) - Priority Date Porting into EB1 category visa

Contents:

Dear USCIS,

I am writing to formally request the revocation of Regulation 8 CFR 204.5(e) specifically as it pertains to the retention of priority dates when transitioning (porting) into the Employment-Based First Preference (EB-1) category.

As a legal immigrant and proud recipient of EB1(A)/E11 category visa approval, I am disheartened to see rampant abuse of this category by EB2/EB3 priority date porters. 

Background:

The current application of this regulation does not sufficiently account for the significant distinctions between the EB-1 category and the EB-2 or EB-3 categories. As you are aware, the EB-1 category is reserved for individuals with extraordinary ability, outstanding professors and researchers, or multinational managers and executives. This classification represents a substantially higher threshold of achievement and national interest compared to the EB-2 (professionals with advanced degrees or exceptional ability) and EB-3 (skilled workers, professionals, and other workers) categories.

Allowing priority date porting from EB-2 or EB-3 into EB-1 creates several points of contention:

Criteria Strictness: EB-1 requirements are far more stringent, demanding extensive documentation of international recognition or high-level corporate leadership, whereas EB-2 and EB-3 often rely on standard labor certifications (PERM).

Category Integrity: The EB-1 category was designed to provide an expedited path for the "best and brightest" to contribute to the U.S. economy. Allowing individuals from lower-preference categories to utilize earlier priority dates effectively dilutes the incentive and purpose of the EB-1 classification.

Backlog Impact: Porting contributes to significant fluctuations in visa availability within the EB-1 category, creating unpredictability for those who meet the high standards of extraordinary ability from the outset of their filing.

EB-1 Approval Statistics (FY 2023–2025)

The following table summarizes total EB-1 petition (I-140) approvals. While porting is common for applicants from backlogged countries (India and China), the exact "ported" subset is not isolated in standard quarterly reports.

Fiscal Year

Total EB-1 Approvals (I-140)

Key Trends & Notes

2023

~31,341

A significant number of Indian and Chinese nationals ported EB-2/EB-3 dates as EB-1 retrogressed later in the year.

2024

~28,000 - 30,000 (Est.)

Approval rates for EB-1A dipped to 60.65%, while EB-1B remained high (>80%).

The practice of porting priority dates from EB-2 or EB-3 into the EB-1 category is a highly contentious topic. While it is a legal mechanism under 8 CFR 204.5(e), many argue it creates "unfair" outcomes for traditional EB-1 applicants and has fostered a market for "credential-padding" scams.

1. The "Unfair" Systemic Impact

The primary argument regarding unfairness centers on the dilution of the EB-1 category, which was designed for the "best and brightest" to have an expedited path.

Line Jumping: Traditional EB-1 applicants (those who qualify at the start of their careers) are often overtaken by EB-2/3 applicants who have spent 10+ years in the U.S. These "porters" use their 2012 or 2014 priority dates to immediately claim a visa, pushing back new, highly qualified researchers and innovators who may have a 2024 priority date.

Artificially Triggered Retrogression: Because so many applicants from backlogged countries (India and China) are porting older dates, the EB-1 category—which was historically "Current"—now faces retrogression. This makes the "Extraordinary Ability" path significantly slower for everyone, effectively penalizing those the category was meant to prioritize.

Category Creep: Critics argue that EB-1 was never intended to be a "seniority-based" queue. By allowing priority dates from lower-threshold categories (EB-3) to be used for a high-threshold category (EB-1), the system shifts from rewarding exceptional talent to rewarding total time spent in the U.S. immigration backlog.

2. The Rise of EB-1 "Scams" and Fraud

The desperation caused by decade-long EB-2/3 backlogs has created a lucrative market for "EB-1 profile building" services, which some federal investigations suggest have crossed into fraud.

Credential Manufacturing: Shady consulting firms promise to help EB-2/3 applicants "manufacture" the requirements for EB-1A. This includes:

Pay-to-Play Awards: Selling "prestigious" awards that have no actual competitive criteria.

Fake Judging Invitations: Creating peer-review opportunities or judging roles specifically to check a USCIS box.

Shady Journal Publications: Using "predatory journals" to publish low-quality research solely to meet the publication requirement.

"Einstein Visa" Mills: A recent CBS News investigation highlighted companies that charge thousands of dollars to create a "veneer of excellence" for applicants who do not naturally meet the extraordinary ability standard.

3. Comparison of Criteria: Why Porting is Controversial

The controversy stems from the vast difference in the "barrier to entry" for these categories:

Feature

EB-2 / EB-3

EB-1 (Extraordinary / Outstanding)

Standard

Professional / Skilled Worker

"Small percentage who have risen to the very top"

Labor Market

Requires PERM Labor Cert (testing U.S. market)

Waived(Presumed benefit to the U.S.)

Sponsorship

Employer usually required

EB-1A can self-petition

Adjudication

Primarily objective (Degrees/Experience)

Highly subjective (Final Merits Determination)

The Core Complaint: By allowing a 2012 EB-3 date to "port" into an EB-1 petition in 2026, the system allows someone who initially only met a "minimum job requirement" to take a visa away from someone who currently meets a "global excellence" requirement.

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I urge USCIS to review the impact of 8 CFR 204.5(e) on the EB-1 visa queue and consider a policy change that maintains the distinct nature of these preference categories.

Thank you for your time and consideration of this matter.