The Employment Based Green Card Process And The
Dramatic Negative Impact Of Country Based Quotas On
Persons Of Indian And Chinese Origin

by Prakash Khatri

United States immigration laws are preventing many of the most talented immigrants in the world from migrating to the United States. On January 10, 2010, the United States Citizenship and Immigration Services (USCIS) released new data confirming that some prospective highly skilled immigrants from one country - India - may have to wait as much as 35 years to get a green card, unless Congress takes steps to change the current nationality based visa quota system and increases the annual quota.

Under the Immigration and Nationality Act (INA), 140,0001¹ employment based immigrants, inclusive of spouses and children, may migrate to this country annually in one of five general categories.

First Preference Employment Based Immigrants (EB-1): This category is for Priority Workers and is limited to 40,000 visas each year (28.6% of the worldwide employment-based preference level). Any unused visa numbers from the EB-4 and EB-5 categories may be added to this quota. 15, 184 workers and 21,494 spouses and children immigrated under this category in FY 2008, which is the latest available detailed data.

Second Preference Employment Based Immigrants (EB-2): This category is for workers in professions holding advanced degrees or persons of exceptional ability. The number of visas available annually in this category are 40,000 (28.6% of the worldwide employment-based preference level), plus any visas that are not used in the EB-1 category. 34,535 workers and 35,511 spouses and children immigrated under this category in FY 2008.

Third Preference Employment Based Immigrants (EB-3): This category is for skilled workers, professionals, and lesser skilled workers referred to as "other workers: The annual limit for workers in this category is 40,000 (28.6% of the worldwide employment-based preference level), plus any visas that are not used in the EB-2 category for that year. However, no more than 10,000 visas can be allocated to the lesser skilled "other workers" in this category. 20,596 workers and 28,303 spouses and children immigrated under this category in FY 2008.

Fourth Preference Employment Based Immigrants (EB-4): This category is for certain special immigrants such as religious workers, certain long-time employees of the U.S. government, citizens of Iraq or Afghanistan that have worked for the U.S. Armed Forces as a translator for at least 1 year, some physicians who have residence in the U.S. for a number of years, juvenile dependents of a court who are eligible for foster care, some dependents of diplomats and others . It is limited to a maximum of 10,000 visas per year (7.1% of the worldwide employment?based preference level). 5,164 workers and 4,346 spouses and children immigrated under this category in FY 2008.

Fifth Preference Employment Based Immigrants (EB-5): This category is for investor immigrants who create employment. It is limited to a maximum of 10,000 visas each year (7.1% of the worldwide employment-based preference level). 427 workers and 922 spouses and children immigrated under this category in FY 2008.

The employment based categories are further restricted by country of nationality, and no more than 7 percent of each category can be allocated to any single nationality. Thus, no more than 2800 visas may be initially allocated to a single nationality group in each of the first three categories. Similarly, no more than 700 visas in each of the last two categories may be awarded to nationals of any single country.

This seemingly arbitrary across-the-board limitation has proven disproportionately disadvantageous to visa applicants from more densely populated countries. For example, under this formula, the maximum number of visas allotted to nationals of China and India, each with a population of over one billion citizens - is the same as that for nationals from smaller states such as Nauru with a population of 10,000 or even the Vatican, which has a population of only 800 citizens.

In recent years, there have been times when the total number of available visas in a particular category have not been entirely allocated. When this happens, these unused visas become available to oversubscribed countries such as India and China. The complex numerical allocation system cannot be fully explained here. The Department of State has a detailed explanation of this process at its website http://www.travel.state.gov/pdf/Immigrant%20Visa%20Control%20System_operation%20of.pdf.

In 2000, Congress passed legislation which allowed the use of approximately 130,000 unused visas from the 1999 and 2000 fiscal years tobe used in future years when the 140,000 annual limit was reached. This allowed additional visas to be issued in the EB-2 and EB-3 categories. The following chart shows the number of immigrant visas (green cards) allocated worldwide on an annual basis as well as the immigrant visas issued to Indian and Chinese nationals in the two categoies that are oversubscribed - EB-2 and EB-3:

* Neither USCIS nor DOS have any published data on the individual country data for 2002 on their websites. Source: DHS, Office of Immigration Statistics, Yearbook of Immigration Statistics, 2000-2003 and DOS, Annual Report of the Visa Office Table V, 2003-2009.

For the past seven years, in my role as the nation's first Citizenship and Immigration Services Ombudsman and subsequently as an immigration attorney inprivate practice, I have requested from USCIS the data on the total number of pending employment-based cases by category, priority date, and country of chargeability. Common sense dictates that USCIS would maintain and monitor such statistics in the course of performing its core immigration fnctions. Without this data, USCIS would appear to be violating the very basis of the law that established the numerical limits on employment-based immigrant visas. The responses to my queries have been disheartening at best.

In August 2009 USCIS released a report that, for the first time, publicly revealed some of this important data that I had been requesting since 2003. On January 10, 2010, USCIS released an updated version of the data. USCIS has acknowledged that it has not included all the data since its systems do not allow it to do so. The data excluded some pending cases for which visa petitions had not been approved, even though USCIS accepted the I-485 applications concurrently. USCIS also excluded applications pending at field offices, which are apparently on a different database system, and excluded the pending cases with the Department of State's National Visa Center (NVC).

DOS recently released data on pending cases at the NVC. The combined data paint a bleak picture for EB-2 and EB-3 applicants. However, for Indian and Chinese nationals, the news is even worse. The following chart shows total combined pending number of employment based visa applications pending at the two USCIS Service enters based on the Jan 10, 2010 report as well as the number of employment based visa applications pending at the Department of State's National Visa Cener:

TABLE 2	Worldwide including India and China EB-2	India EB-2	China EB-2	Worldwide including India and China EB-3	India EB-3	China EB-3
USCIS Total Pending as of 12/11/2009	63,725	40,022	17,753	141,019	60,874	5,943
DOS Total Pending as of 11/01/2009	6,295	2,996	936	103,448	20,467	7,112
Combined Total	70,020	43,018	18,689	244,467	81,341	13,055
Estimated Processing time based on FY 2009 visas allocated	1.5 years	4.2 years	6.1 years	6.1 years	35.3 years	12.1 years
Estimated Processing time based on full usage of 7% national	1.5 years	siliconindia Most Read Important Motor Insurance Terms You Should Know Well 4 Significant Implications of AI in SME Business Tactics Inventory optimization through Turbodata 7 Great Ways To Improve Communication With Your Employees 5 Tips to Enter the Investing World How to Use an Email Signature as a Marketing Tool Top 10 Business Intelligence Trends for 2018 Make Your Business Ideas a Reality Tips and Tools to unhide non-system files Plug and play forecasting analytics using data compression and sql reduction More from Business blogs Top 10 Smartphones To Gift This Diwali For... Collaborating with Local Courier Services ... What Makes Remote Work A Good Business Sense? The Importance of Contact Management in To... Future of IVR Calling Systems: Trends and ... view all>>