By Rahul Reddy & Emily Neumann Attoney's at Law.
“It does not take a majority to prevail... but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men.” -Samuel Adams.
Right now, Indians waiting for an employment-based green card should be irate. Unless Indians in America are willing to push for reform, many will retire or even perish before ever receiving a green card through the employment-based immigration system because it may take 82.5 years if you are starting the process today.
Foreign nationals rely on the monthly Visa Bulletin issued by the Department of State in order to estimate the length of the wait to receive a green card in various employment sponsored visa categories. However, the Visa Bulletin really only tells us who may be eligible during a given month. Attempts to estimate waiting periods based on the current month’s visa bulletin can be completely inaccurate.
Beyond the Visa Bulletin, we can look to the USCIS Inventory of pending Employment-Based I-485 applications. This is updated quarterly and shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year. USCIS suggests that this chart can be used to determine how many applicants in a particular preference classification, such as EB-2, and from a particular country, have priority dates in the same month and year as your own. Then, you can determine how many applicants in your preference classification are ahead of you in line for a green card by adding together the number of cases with an earlier priority date than your own. Still, this is mostly inaccurate.
The inventory does not include all potential employment-based immigrants. The report only contains principal and dependent employment-based I-485s pending at USCIS Service Centers and Field Offices. It does not include cases pending consular processing at overseas posts. It also does not include individuals and their dependents with a pending or approved I-140 petition who have not yet filed an I-485 application or begun consular processing.
So, while the visa bulletin makes it appear that the waiting period for Indians with an Advanced Degree may only be approximately 9 years and 8 months (the amount of time between January 15, 2007 and October 1, 2016 in the current visa bulletin), and the USCIS inventory suggests that about 19,040 people from India are waiting in line with a pending Adjustment of Status application, there are actually somewhere upwards of 100,000 Indians who do not yet appear on this inventory since just 2010.
In FY 2011 the Department of Labor certified 31,273 job offers for Indian nationals. Each year after that, there were 30,278, 20,930, 35,092, 45,670, and 48,939 through the 3rd quarter of FY 2016 (June 30, 2016). This is a total of 212,182 labor certifications approved for just Indians since October 2010.
In recent years, approximately 50% of all labor certification approvals were for positions requiring an Advanced Degree. This percentage is likely higher for Indians and does not take into account positions requiring a Bachelor’s degree plus 5 years of progressive experience which also can be considered as Advanced Degrees for purposes of the EB-2 Preference Category. But, let’s just assume that 50% of the 212,182 labor certifications approved for Indians are Advanced Degree petitions. That is potentially 106,091 EB-2 applicants with priority dates after May 2010.
Of the 140,000 green cards that are available for employment-based applicants each year, only 28.6% are allocated to the EB-2 category, or 40,040. However, this number is further divided by the per country cap which says that no more than 7% of the visas may be issued to natives of any one country in a fiscal year. That leaves Indians in the EB-2 category with approximately 2,802 green cards to be issued each year.
But remember, the approximately 106,091 EB-2 applicants we calculated does not include their family members. Let’s assume that each of these workers with an approved EB-2 labor certification is married. That comes out to 212,182 potential applicants waiting to file an adjustment of status since October 2010. But don’t forget, USCIS has 19,040 applicants currently in line for a total of 231,222 possible Indians needing EB-2 green cards. That means someone with a job offer today, may have 231,222 people ahead of them in line.
So, how long might that take? Remember, there are only 2,802 that can be granted each year. To grant green cards to all 231,222 potential Indian applicants in the pipeline, it could take 82.5 years.
There are other factors that come into play. For example, while EB-2 is limited to 28.6% of the 140,000 employment-based green cards, unused numbers from the family-sponsored preferences are added to the available employment-based numbers. On average, about 8,500 family-based green cards have been applied to the employment-based category a year, so EB-2 may actually be able to use closer to 42,000 a year. Further, any numbers not used up by the EB-1 category trickle down to the EB-2 category. Since Fiscal Year 2007, on average, 55,415 green cards were allocated to the EB-2 category each year.
If this were to continue, and if these “extra” 15,375 EB-2 green cards were allocated solely to Indian nationals each year, in addition to the 2,802 specifically allocated under the per country cap, the wait time could be reduced to only 12.7 years. However, the number of unused EB-1 green cards available for trickle down has declined drastically since late 2013. This is a result of larger numbers of typical EB-2 applicants opting for EB-1 to avoid the long wait. For instance, in FY 2014, the EB-1 category had 42,969 green cards available and 40,554 were used. That left only 2,415 available to trickle down to EB-2 Indians.
The public information from the Visa Bulletin and USCIS has lulled Indians into a false sense that the wait really isn’t that bad. But, as we have dug deeper, the real numbers show a possible 82.5 year wait. Something has to change.
It’s time Indians are aware of the real hand they have been dealt and push for immigration reform, such as:
1. Allowing recapture of green cards that were not used up in previous years
2. Stop counting dependents as workers. Currently, spouses and children take up half of the green cards allocated to employment-based immigrants
3. Get congress to act on eliminating the per country cap
4. Get congress to act on exempting selected categories from the cap, such as US STEM degree graduates
5. Get congress to act on reallocating the percentage of green cards available in each category (i.e. provide a larger percentage of the available green cards to EB-1 and EB-2)
6. Get congress to raise the cap above 140,000 (highly unlikely)
Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.
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