35 years to get EB-3 Green Card to USA
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
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
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
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:
|
TABLE 1 |
Worldwide EB-2 including
India and China |
|
|
Worldwide EB-3 including
India and China |
|
|
2009 |
46,049 |
10,124 |
3,046 |
39,798 |
2,306 |
1,077 |
2008 |
70,099 |
14,806 |
6,995 |
47,165 |
3,745 |
2,057 |
2007 |
44,400 |
6,203 |
6,797 |
77,667 |
17,985 |
3,681 |
2006 |
22,425 |
3,719 |
3,344 |
63,345 |
3,177 |
2,739 |
2005 |
43,412 |
16,687 |
9,345 |
122,130 |
23,399 |
4,998 |
2004 |
32,711 |
16,262 |
6,686 |
88,114 |
19,962 |
4,733 |
2003 |
15,604 |
8,536 |
2,613 |
47,354 |
10,680 |
3,485 |
2002 |
44,468 |
* |
* |
88,555 |
* |
* |
2001 |
42,620 |
11,063 |
6,408 |
86,058 |
7,852 |
3,288 |
2000 |
20,304 |
7,233 |
6,073 |
49,736 |
5,360 |
3,531 |
* 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 |
|
|
Worldwide |
|
|
USCIS Total |
63,725 |
40,022 |
17,753 |
141,019 |
60,874 |
5,943 |
DOS Total |
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 |
1.5 years |
4.2 years |
6.1
years |
6.1
years |
35.3
years |
12.1
years |
Estimated Processing |
1.5 years |
|