By Rahul Reddy Attorney at Law.
U.S. immigration law provides foreign nationals with a variety of ways to become lawful permanent residents. Many Indian nationals apply for green cards through the employment-based immigration system every year. One of the most popular avenues for obtaining a green card for Indians, and thus the one that will be discussed here, is via the Employment-Based 2nd preference category. What many Indian applicants don’t know is that, unless the system undergoes drastic changes, they will be waiting at least 108.6 years to receive green cards even if they begin the process today.
This may be a shock, considering the available information from USCIS makes it appear as though the waiting period for Indians is currently only about 7 years. In order to calculate the wait time, an applicant needs to know the ‘priority date’ that is current and the number of pending cases preceding his own. The Department of State releases a monthly ‘Visa Bulletin’ that reports the current priority dates for each employment-based category. The ‘Final Action’ date indicates the cases that have become current and are due for visa issuance. For example, the Bulletin released for January 2018 shows the Final Action date is November 22, 2008, for Employment-Based 2nd preference cases from India.
According to the Bulletin, EB-2 cases from India dated before November 22, 2008, are current. To calculate how many pending cases there are, one can consult the USCIS inventory of pending Employment-Based I-485 applications. This is updated quarterly and reports how many pending adjustments of status (green card) applications in each preference category have priority dates in a given month and year.
By using these two reports, it appears that it is easy to determine the wait time before a visa number becomes available for your own case. For example, imagine if John Smith, an Indian national with an advanced degree, were a 2nd preference applicant applying today. The current priority date is in November 2008 according to the Bulletin. Based on this date, USCIS suggests that 18,841 cases are in line ahead of him with a pending Adjustment of Status application. Indians in the EB-2 category have about 2,802 green cards available for an issue each year. By this calculation, it should only take 6.7 years for Mr. Smith to receive his green card.
However, this is a gross miscalculation. So where does this discrepancy come from? The answer is that only partial information is being provided.
The USCIS inventory does not include all potential employment-based immigrants. As you can see, the inventory stops in May 2010. From May 2010 to the present there have been certified job offers given that will inevitably become pending I-485 applications as the inventory is updated.
How can we fill in the missing information to get a more accurate picture of the wait time for a green card? In Fiscal Year (FY) 2010, the Department of Labor certified 28,930 job offers for Indian nationals. Each year after that there were 31,273, 30,278, 20,930, 35,092, 45,670, and 48,939 through FY 2017.  This is a total of 289,071 labor certifications approved for just Indians since January 2010.
Approved Labor Certifications according to DOL
In recent years, about 50% of all labor certification approvals were for positions requiring an Advanced Degree. For the purpose of this scenario we will assume 50% of the 289,071 labor certifications approved for Indians are for Advanced Degree petitions – a conservative estimate considering the actual percentage is likely higher for Indians (taking into account positions requiring a Bachelor’s degree plus 5 years of experience, which can also be considered part of the EB-2 category). After adjusting for the pending cases from before May 2010, this amounts to 142,772 EB-2 applicants with priority dates after May 2010.
Of the 140,000 green cards available for employment-based applicants each year, only 28.6% are allocated to the EB-2 category, or 40,040. This number is further divided by the country quota, which states that no more than 7% of the visas may be issued to any one country in a fiscal year. This leaves Indians in the EB-2 category with about 2,802 green cards to be issued each year.
However, we should remember that the approximately 142,772 EB-2 applicants we calculated did not include their family members. Let us assume that each of these workers with an approved EB-2 labor certification is married (which we have found to be true in almost every case). This changes the total to 285,545 potential applicants waiting to file an adjustment of status since 2010. As mentioned before, USCIS already reports 18,841 applicants waiting in line from 2008-2010. This means there are a staggering 304,386 total applicants from India needing green cards. That means Mr. Smith, who received a job offer and began the process today, may have 304,386 people ahead of him 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 304,386 potential Indian applicants in the pipeline, it could take 108.6 years. Considering the average human lifespan is only 79 years, this is quite literally longer than a lifetime.
Are there any factors that could reduce this waiting time? One thing to consider is that some applicants may leave the EB-2 pool by having their U.S. citizen children sponsor them after they come of age at 21 years old. A grim fact of the matter remains that some applicants may simply grow old and pass away, leaving available visas in their wake. From a more hopeful perspective, if demand in other categories is lower, it could possibly increase the number of EB-2 visas available. For example, while EB-2 is limited to 28.6% of green cards, any unused visas from the family-sponsored preference categories are added to the pool of available employment-based visas. However, these additional visas have been continually decreasing in recent years. There were 10,241 unused numbers in the family-sponsored preference classes in 2013, 4,796 in the year 2014, and only 338 in the year 2015. Although any visas not used up by the EB-1 category ‘trickle down’ to the EB-2 category, there have not been any such unused EB-1 visas since at least 2013. In fact, the number of unused EB-1 green cards available to ‘trickle down’ has declined drastically since 2013 as a result of more applicants opting for EB-1 to avoid the long wait times associated with the EB-2 category.
The public information from the Visa Bulletin and USCIS Inventory has lulled Indians into a false sense that the wait time is not that bad. However, it is likely that many applicants will submit their cases, grow elderly, and pass away from old age before they can ever enjoy the benefits of a green card.
It is the time that Indian nationals were made aware of the reality of the situation and lobbied for reforms that the current immigration system desperately needs. Some steps the government could take to improve the situation include:
- Allowing recapture of green cards that were not used up in previous years.
- Stop counting dependents as workers. Currently, spouses and children take up half of the green cards allocated to employment-based immigrants.
- Eliminating the per-country cap.
- Exempting selected categories from the cap, such as U.S. STEM degree graduates.
- 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)
- Raising the cap above 140,000 for all green cards
 See https://www.uscis.gov/greencard/pending-employment-based-i-485-inventory
 See https://www.dhs.gov/sites/default/files/publications/Lawful_Permanent_Residents_2016.pdf