Tag Archives: U.S. Citizenship and Immigration Services

Immigration Blog

Understanding the Potentially Decades-Long Waits for Indian Professionals in the Most Common Employment-Based Green Card Category

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Today, hundreds of thousands of highly skilled foreign nationals, particularly Indians, are languishing in immigration backlogs, waiting years for the chance to obtain permanent residence (also known as a green card). The lack of employment-based green cards harms the competitiveness of U.S. employers and exacts a large personal toll on those who must wait.

Understanding the Indian Green Card Backlog

The long waits for employment-based green cards are caused by two primary factors. First, the 140,000 annual quota is too low to accommodate the number of skilled foreign nationals able to be absorbed successfully in an economy the size of America’s. The 140,000 annual limit includes both the principal and dependent family members. For example, in 2009, dependents utilized more than half of the slots for employment-based visas – 76,935 of 140,903.

In addition to the 140,000 overall annual limit on employment-based green cards, there is also a per country limit, which has a disparate impact on immigrants from countries with a large population of highly educated professionals, particularly India and China. The Immigration and Nationality Act, in Section 202(a), details the per country limit: “[T]he total number of immigrant visas made available to natives of any single foreign state . . . may not exceed 7 percent . . . of the total number of such visas made available under such subsections in that fiscal year.” That would limit employment-based immigrants from one country to approximately 10,000 a year (out of the 140,000 quota), although another provision permits nationals of a country to exceed this ceiling if additional employment-based visas are available. Still, in general, in the most common employment-based category, fewer than 3,000 Indians per year can immigrate.

The Indian Backlog in the Employment-Based Third Preference (EB-3)

The reason Indian nationals will continue to wait a long time for employment-based green cards in the employment-based third preference (EB-3), the most common employment category, is the demand for their labor combined with the per country limit has created a large Indian backlog.

The backlog of Indians in the employment-based third preference could be as large as 210,000. One can estimate the backlog of Indians in the EB-3 category from available data. Earlier in 2010, the U.S. Department of State listed 49,850 Indians on the waiting list in the third preference category with a priority date prior to January 1, 2007. Priority dates normally coincide with the filing of a petition or of labor certification, an early stage in the employment-based green card process. However, that 49,850 figure does not include all the cases at various stages in the process at U.S. Citizenship and Immigration Services with a priority date prior to January 1, 2007. Rounding that figure upwards would get to at least 60,000 (and it could be higher).

To reach another 150,000 Indians for fiscal years 2007 through 2011 requires only about 15,000 individual Indian professionals sponsored for green cards each year for 5 years, with each averaging one dependent, another 15,000, for a total of 30,000 a year for 5 years or 150,000. To illustrate why an estimate of at least 15,000 Indians sponsored for green cards annually in EB-3 is reasonable, consider that 61,739 new H-1B petitions (for initial employment) were approved for Indians in FY 2008, and 33,961 Indians were approved for new H-1B petitions in FY 2009. A large proportion of H-1B visa holders are sponsored for green cards. In addition, employers frequently sponsor for green cards skilled foreign nationals already inside the country in another temporary status, such as L-1 (for intracompany transferees). Attorneys estimate 20 percent of those waiting for employment-based green cards are in a status other than H-1B.

Backlog is Large and Few Are Removed From Backlog Each Year

With no change to current law, an Indian-born professional sponsored today could wait decades for an employment-based green card. Due to the per country limit, generally no more than 2,800 Indians can receive permanent residence in the EB-3 category each year. Indians averaged fewer than 3,000 green cards annually in that category in 2009 and 2010, according to U.S. Citizenship and Immigration Services.

If, as discussed above, the potential backlog in the EB-3 category is 210,000 for Indians (principals and dependents) and 3,000 or fewer Indians can receive permanent residence in the category each year, then that means the theoretical wait for Indian professionals sponsored today in EB-3 is 70 years.

Nobody Will Wait 70 Years for a Green Card

In practice, no one can wait 70 years for a green card. That holds important implications for whether highly skilled foreign nationals from India will be able to stay long-term in the United States without changes to the law. Foreign nationals would have concerns that children included as part of the immigration petition would “age out” and not be allowed to become permanent residents. Moreover, generally speaking, spouses are not able to work. The numbers provide an illustration of how long the waits for permanent residence could be absent action by Congress. Eliminating the per country limit for employment-based green cards and raising the quotas for skilled immigrants will have a significant impact on reducing the time Indians wait for green cards.

Immigration Blog

H-1B Visas Are Almost Gone – Then What?

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Many employers and foreign nationals hoping to work in America have been happy that the supply of H-1B visas did not evaporate rapidly this fiscal year. That happiness may soon change.

The News Isn’t Good

The news from U.S. Citizenship and Immigration Services (USCIS) is that the supply of new H-1B visas for fiscal year 2012 will soon be a thing of the past. (Find link here.)

Contrary to popular belief there is not one but two caps on H-1B visas. The first cap of 65,000 is available to all foreign nationals who qualify for H-1B status and receive a petition. The second cap is a 20,000 allotment for foreign nationals who attain a masters degree or higher from a U.S. university.

U.S. Citizenship and Immigration Services began accepting applications for H-1Bs on April 1, 2011, even though individuals with approved petitions could not legally begin working in H-1B status until October 1st. Earlier this year, the 20,000 “masters exemption” was exhausted. Now, USCIS reports that as of November 14, 2011, 56,300 petitions that count against the 65,000 cap have been utilized. At the current pace, it is possible the remaining cap will be exhausted by the end of the 2011 calendar year.

The Only Practical Way to Hire

Lost in the debate over H-1B visas is a simple fact – an H-1B is generally the only practical way for an employer to hire a foreign-born professional to work long-term in the United States. Factoring in the initial stage of labor certification, the wait for an employment-based green card can range from a few years to even decades, depending on the category and country of origin. And the waits are longest for Indian nationals because of the per country limit.

Available Options

Without the possibility for a skilled foreign national to obtain a new H-1B petition, the options will grow limited for both employers and potential employees. Hiring by universities and non-profit research institutes are exempt from the H-1B numerical limits, which presents one avenue of employment for a skilled foreign national. Another option is that an employer may decide to hire someone outside the country. After a year, if the individual possesses “specialized knowledge” or is a manager or an executive, it may be possible for that individual to transfer into the United States on an L-1 visa.

Another option for an employer is to hire the individual outside the United States and file a new H-1B petition in April 1, 2012, although the individual could not start working in the U.S. until October 1, 2012 (the beginning of the new fiscal year). In short, there are no good options. The closest to a “good” option is for an international student at a U.S. university to determine if he or she qualifies for Optional Practical Training (OPT), which would allow the student to stay in the United States and obtain training while working for an employer for up to a maximum of 29 months.

The Prospects for Legislation

Realistically, it is unlikely Congress will pass an expansion of the H-1B quota in 2011 or during the first half of 2012. Any legislation passed after that time would not help individuals in the short term who need to be hired in H-1B status to work legally in the United States. A new supply of H-1Bs would become available on October 1, 2012.

It is possible that a small expansion of H-1Bs or an expansion of the 20,000 “masters exemption” could be part of another piece of immigration legislation. Yet it is unlikely an expansion of H-1Bs would pass without at least some legislative debate over whether to include new restrictions on H-1B visas in such a bill. In the meantime, the best bet for employers and potential hires who require an H-1B visa is to get one while supplies last.