EB Immigrants: How Long Before I Get My Green Card? (Part 2)

In our December 2009 newsletter, we explained how the employment-based immigration (EB immigrants) priority date system works. 

See: http://www.shusterman.com/newsletterusimmigrationdecember2009/#4

In this article, we provide you with materials which may make it easier for you to estimate when you will be able to adjust your status (AOS) and become a permanent resident.

First of all, how many people have pending applications for AOS in the EB categories?  The USCIS states that, as of September 23, 2009, there were 234,000. Of this total, 75,000 were in the EB-2 category and 151,000 were in the EB-3 category.

Of course, not all persons with EB priority dates, even old ones, are eligible to AOS in the U.S.  For example, there is no non-immigrant category for RNs born in outside of the Canada or Mexico.  Therefore, most nurses must immigrate abroad.  Assuming that 85% of EB immigrants are able to AOS, the additional 15% who obtain immigrant visas abroad add another 32,000 to the EB backlogs.

If this were the end of the story, it would be relatively easy to estimate how long it would take for you to get your green card.  However, in the world of U.S. immigration laws, things are not so simple.

With a few exceptions, none of the 194 countries outside the U.S. is allowed to use over 7% of the 140,000 EB numbers allocated each year.  This puts a lot of pressure on countries like China (population: 1.3 billion) and India (population: 1.1 billion) since these countries send a lot of nonimmigrants to the U.S. but whose annual limitation on EB immigrants is equal to “non-sending” countries like Andorra (population: 82,000) and Liechtenstein (population: 32,000).

In fact, the number of persons born in India with pending applications for AOS is 111,000, roughly equal to the total populations of Andorra and Liechtenstein!  Of these, 48,000 are in the EB-2 category and 63,000 are in the EB-3 category. 

The numbers for the other “high-sending” countries are as follows:

  China           EB-2   19,300   EB-3     6,300

  Philippines   EB-2       510    EB-3   11,500

  Mexico         EB-2       211    EB-3     8,000

How about the statistics for persons born in any of the other 190 countries in the world?  There are only 75,000 pending applications for AOS in the EB categories from these countries, far less than for India!  Of these, 7,100 are in the EB-2 category and 63,000 are in the EB-3 category.

So what does all this mean to you?

If you are in the EB-2 category, and were born in any country other than China or India, there is little risk that you will have to wait more that a few months to get your green card after your PERM application is approved.   This is because out of the 75,000 people with pending applications for AOS in the EB-2 category, almost 70,000 were born in China or India.

What are the waiting times if you were born in China or India?

Let’s take China first.  Since 28.6% of the each country’s EB numbers (9,800 per year) are allocated to EB-2 category, this means that only 2,802 persons, those with the oldest priority dates, can AOS each year.  However, any visa numbers not used by persons in the EB-1 category which also has a yearly cap of 2,802 can also be used by those with EB-2 priority dates.  A rough estimate is that 3,000 to 4,000 green cards are available each year to persons with China EB-2 priority dates.  With 19,300 persons with pending applications for AOS, it is easy to see why the current priority date in the January 2010 Visa Bulletin is May 1, 2005, almost a five-year backlog.

Things look much more grim for persons with pending AOS applications under the EB-2 category who were born in India.  Why?  Because the quota remains roughly the same (3,000 – 4,000 per year), but the number of persons with pending AOS is more than double (48,000) what it is for China.  Though the January Visa Bulletin shows a five-year backlog, my best guess is that this is only true because the great bulk of Indian EB-2 cases have priority dates in 2005 and 2006.  If your EB-2 priority date is in 2006 or 2007 and you were born in India, chances are that you will have to wait another 10 years or so to get a green card.

The outlook for those in the EB-3 category is even worse, especially for folks born in India.  The number of persons with EB-3 priority dates with pending AOS applications exceeds 150,000.  The number of persons in this category who were born in India is the same as the number of persons born in the other 190 countries (besides China, the Philippines and Mexico) combined: 63,000.  And since India EB-2 applicants will use up all of the remaining India EB-1 and EB-2 visa numbers, only 2,802 EB-3 visa numbers will be available annually.  The results can only be described as frightening.  The real backlog is over 20 years!

And what does the future hold?  Perhaps the number of applicants in the EB categories is decreasing?  Yes, this is true, but there is little chance that the present green card backlogs for those with EB priority dates will significantly decrease unless Congress steps up the plate and reforms our outdated immigration laws.

The USCIS issues quarterly “Production Reports” which show how many petitions and applications of various types were received and processed by the agency.  We looked to see how many I-140s were received by the USCIS in FY2008 which began just a few weeks after July-August 2007 when all EB priority dates become current, and presumably, all eligible applicants applied for AOS.

Here is what we found: On a quarterly basis, the USCIS received 32,000; 30,000; 24,000 and 18,000 I-140s, for a total of over 100,000 I-140s in one year.  Assuming USCIS approved 80-90% of these petitions, this is far short of the 140,000 annual EB quota, right?  Hardly, since this only means that 80,000 to 90,000 principal beneficiaries had I-140s approved on their behalf.  Taking their derivative spouses and children into account, the real number of people added to the EB queue in FY2008 was probably between 200,000 and 300,000.  And remember, some EB categories require I-360s or I-526s rather than I-140s so the number of applicants is even a little larger than this.  It is true that in FY2009, the number of 1-140s received by the USCIS was probably about half what it was in FY2008, but with family members added in, the total number of applicants probably will exceed 140,000.

And since most EB-2 and EB-3 applicants need to have PERM applications approved on their behalf, and the date that the PERM application was received by the U.S. Department of Labor (DOL) is the person’s priority date, wouldn’t it been interesting to know that how many PERM applications are currently being processed by the DOL?  Answer: As of September 23, 2009, the number was 65,800.  This is important to know since some of these applications have been pending for a long time.  Even if you submitted your AOS application in 2007, someone with a long-pending PERM application which finally gets approved may be in line ahead of you for a green card.  And not just one person, but his/her spouse and children.

We hope that this helps you to better understand the “retrogression” and why the present EB system needs to be reformed when Congress takes up immigration reform in January.

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