EB-2 Green Card Situation Improves for High-Skilled Indians and Chinese

The new State Department Visa Bulletin indicates the availability of green cards is improving slightly for Indian and Chinese nationals sponsored in the employment-based second preference, known as EB-2. (A copy of the latest visa bulletin can be found here.)

How the Law Works

Under the law, there are 5 employment-based preferences: First Preference (EB-1, priority workers); Second Preference (EB-2, worker with advanced degrees or exceptional ability); Third Preference (EB-3, professionals, skilled workers and other workers); Fourth Preference (EB-4, special workers, such as religious workers); and the Fifth Preference (EB-5, employment creation or investor visas).

A total of 40,040, or 28.6 percent of the 140,000 annual quota is used by each of the first, second and third preferences. The second preference can use any numbers not utilized by EB-1, while EB-3, the third preference, can use any visa numbers not utilized by the EB-2 category. For the employment-based second preference, generally the employer needs to require the position to be filled by someone with a masters degree or higher and the individual possesses such a degree.

The employment-based immigrant categories have per country limits, which makes the waits longer for nationals from large countries. India and China are most affected by those limits in the employment categories.

Priority Dates

The setting of priority dates is used to manage the flow of immigrant visas within the limits set by Congress. A visa number generally is “available” for an individual with a priority date earlier than the date listed in the State Department’s most recent Visa Bulletin. A priority date is usually triggered by the date a labor certification application or an immigrant petition is received by the federal government.

In the December 2011 Visa Bulletin, just published online, the priority date for EB-2 is March 15, 2008.  In the November 2011 Visa Bulletin, the priority date for the employment-based second preference was November 1, 2007. This type of movement in a short period is used to encourage more applicants to help ensure the quota is close to fully utilized without going over the annual limit.

The Situation for EB-2 Applicants

In recent years, because of the fall down of immigrant visas from the EB-1 category, about 50,000 immigrant visas a year have been available in the employment-based second preference. Nationals from India and China can exceed the per country limit allocation for their respective countries if otherwise immigrant visas within a category would go unused.

A brief analysis of the EB-2 situation can be found here on the website of the law firm Berry Appleman & Leiden. The analysis notes, “A foreign national cannot apply for permanent residence (a green card) until a visa is available based on their priority date, preference category, and country of birth.” It goes on to explain: “The DOS [Department of State] has predicted that it is possible that immigrant visa availability could move forward again in the January and February 2012 Visa Bulletins, but then retrogress later in the year. Last year, according to the DOS, there were 3,000 EB-2 petitions filed on behalf of individuals born in India who already have priority dates established through EB-3 petitions.  Because those individuals can use their previous EB-3 priority date for the EB-2 category, the movement in EB-2 numbers for India is likely to slow down.”

The attorneys at Berry Appleman & Leiden also offer this advice: “While we cannot predict whether movement will occur in the Visa Bulletin, it is important that any Indian or Chinese national with a current priority date files the last step of the green card process as soon as the priority date is current in December.  If visa numbers regress before the application has been filed, the foreign national will lose the opportunity to apply for permanent residence, which would negatively affect dependent children who are close to turning 21.”

The Bottom Line

The bottom line is that absent Congressional changes to employment-based immigrant quotas and the per country limit improvement in green card availability for highly educated Indian nationals may only be short-lived.

Emerging Contours of the Indo-US Strategic Partnership

At a symposium on the emerging contours of the Indo-US strategic partnership, organised by the Woodrow Wilson Centre at Princeton University on November 11-12, 2011, most participants agreed that the partnership was indispensable and that it would shape the geo-political contours of the 21st century. The present state of drift in the relationship does not portend a break down in the long term. The symposium was attended by leading members of the strategic community, including policy analysts, military experts, academics and journalists, from India and the United States.

An Indian analyst was of the view that the balance of power is shifting gradually from Europe and America to the Asia-Pacific region. He ascribed this to the ongoing rise of China and India as emerging economic and military powers. China is investing rapidly in enhancing its military capabilities as it wishes to safeguard its sea lanes of communications (SLOCs) in the Indian Ocean by deploying the PLA Navy.

A U.S. analyst identified three main trends in China’s rise: China is governed by ‘arbitrary despotism’; the main engine of economic growth, i.e. the large-scale move of rural population to urban centres is declining; and, nationalism is on the rise in China. China is likely to engage in a new Cold War with its regional neighbours and the U.S. can and must play a role in acting as a balancer.

Another U.S. analyst spelt out three core pillars of the U.S. strategy in Asia: U.S. engagement anchored by treaty obligations; developing a strong relationship with emerging Asian powers like India, Indonesia and Malaysia; and, building multilateral institutions like ASEAN for stability.

Speakers from both the countries were critical of the sense of gridlock that has gripped domestic politics, particularly when there has been an economic downturn. Both the governments appeared to have ceded space on driving the respective national agendum. There is a need to enhance diplomatic engagement and reduce the newfound proclivity for military interventionism.

An Indian analyst expressed the view that the growing Indo-US relationship merits an ‘A plus’ report card, but there are bound to be some differences in the approach of the two countries to emerging issues like the conflict in the Middle East/ West Asia and Iran’s purported quest for nuclear weapons. Indian participants conceded that India’s nuclear liability Act was problematic and that India needed to suitably address the apprehensions of international nuclear energy suppliers. However, they were of the view that the Indo-US partnership was strategic in conception and should not be reduced to a transactional relationship.

A U.S. analyst stated that international politics is about the distribution of power and the emerging relationship with India was central to the U.S. approach as a strong partnership with India would ensure a favorable distribution of power. An India that was capable and powerful was desirable from the U.S. point of view even if it did not always support U.S. initiatives. There is a perception in India that U.S. power is flagging and if this gains currency, India will have fewer incentives to go with the US.

An Indian participant stated that India is likely to join a future coalition of the willing for joint operations if the desired goal directly affects India’s vital interests. Recent joint military exercises have gone a long way towards resolving interoperability issues and have led to mutual trust and confidence. Major irritants from the Indian perspective include the continuing sale of conventional arms to Pakistan, the lack of U.S. concern about Indian interests in Afghanistan and the enduring reservations on the part of the U.S. about transferring cutting edge defence technology to India.

There was a broad consensus during the symposium that the U.S. and India must work together for peace and stability in Asia. While the Indo-US strategic partnership is not intended to form a joint front against China, should China behave irresponsibly in Asia, or should it implode due to internal instability, both India and the U.S. will need a strong partner to successfully manage the fallout.