The Endless Wait for a Green Card

For most Indian employees working in the US, there is an extremely long wait for getting the green card. This is even after the employer files a petition indicating intent of the employee to immigrate and the petition is approved. While this problem affects both India and China, it is more acute for India. The wait times, gradually worsening over the past few years have increased to several decades now, to the point of just becoming a meaningless number.

The only thing worse than waiting in this infinite line is not even understanding how the system works. Now and then I would read headlines around this topic that made no sense like ‘the current date moved backward’ or ‘people are downgrading’. I decided to dig deep and understand how these wait times work and what it means for the future.

In this post I will only talk about Employment based green cards. ‘Employment based’ is when a foreign national becomes a lawful permanent resident through employment in the United States. The different employment based categories are EB-1(or E1), EB-2 … EB-5. They are roughly equivalent to PhD degree holders, Masters degree holders, bachelor degree holders, religious workers and investors in that order.

Why doesn’t everyone get a green card once their petition is approved?

There is limit to the number of green cards/immigrant visas that can be issued on the basis of employment every year. Today this annual cap is 140,000 green cards. The 140,000 green cards are split up between the different categories in a specific proportion. Added to this there is a “per-country” cap. This means that each country has a limit that is 7% of the total number i.e. 9800.

Allocation of green cards between categories and countries

When you apply for a green card/ immigrant visa, the date on which the Department of Labor receives your petition is your priority date. Think of this as your place in the line. It is the day you are officially expressing your intent to immigrate to this country. Once you submit your petition and it is approved, you need to check on the availability of a visa for your country/category. If the demand is less than the available number of green cards for a particular country/ category combination, that combination is said to be current and you can adjust your status to a lawful permanent resident. If there is higher demand than the number of available green cards, then you need to wait. For that combination, USCIS will set a priority date. Anyone whose priority date is before that date can file an adjustment of status and get a green card. Every one else needs to wait for their priority date to become current.

Are there only 2803 green cards for EB2 India every year?

Not really! The 7% country cap is to ensure every country gets a shot at getting the green cards. If there are leftover green card numbers they are given to the country/ category with higher demands.

• Spillovers between categories: Unused green cards can be moved between different categories but in a specific order. E5 has a maximum of 9,940 green cards that can be issued in any year. But what if there was demand for only 6000 green cards in the category in a particular year? The unused green cards can be used towards E1 so they are not wasted. Spillovers from E4 and E5 go to E1. Spillovers from E1 go to E2 and spillovers from E2 go to E3.

Spillovers between categories

• Spillovers from within the same category: There are 40,090 green cards that can be issued in E2. Each country gets up to 7% (2803) green cards. If the total demand in the category is less than 40,090, say 40,000 then the remaining green cards (90) are assigned to the country that has the largest backlog i.e the most retrogressed country(MRC). In this case the MRC will get 2893 green cards(2803 +90). ROW refers to rest of the world; i.e. all countries that do not have more demand than the numbers available for their country.

Spillover movement accounting for inter and intra-category preferences

What are the current wait times?

Every month the USCIS releases a Visa bulletin which specifies the status (current / priority date) for the different categories in each country. Below is the data from the Visa bulletin for April 2018.

Prioirity dates that are current as of April 2018

For employment based green cards, except for India, China and Philippines, all other countries have a ‘current’ status for E1, E2 and E3. You can see that India is the most retrogressed country. A citizen of India with a priority date of February 2008 in the EB3 category is only eligible to get their green card now. So they had to wait for over 10 years. The guy with a priority date of 2008 and a 10 year wait however is much better off than someone with a priority date of 2018 and a potential wait time of several decades. This is because every year, there are more people joining the line than there are people leaving the line and the line increases in size.

E1 category: Even though from the above data it looks like a 6 year wait for this category, till last month the E1 category was current for both China and India. So everyone got their green card in a few months. But due to high demand now these categories are back at a Jan 2012 date i.e. starting April, till USCIS finishes processing and approving green cards for petitions before Jan 2012, they will not accept adjustment of status for anyone whose priority date is after Jan 2012.

Did you just say that the dates went back to Jan 2012? Can the dates go back? :O

YES :( The dates can go back instead of moving forward, it is called retrogression and it is everyone’s worst nightmare; at least it used to be. Now people have just given up hope. Even though all foreign nationals express their intent to immigrate and get a priority date, this alone is not enough for the government to know how many people are in line. This is because after you get your priority date, you can get married (adding a spouse to your application) or have kids outside the US (adding dependent to your application) etc. While you adjust your status you can include spouse/dependents and they will also be counted against the visas available for your country/category. You could have also changed you mind and given up your spot. People can shift between categories under some circumstances too. The effect of all of this is that USCIS estimates how many people applied in a particular month. If too many more people end up filing the adjustment of status they need to retrogress. e.g. USCIS estimates that 3000 people applied in Feb to June 2008 and move the date to June 2008 as they have 3000 available green cards. But then 7000 people file adjustment of status. This is more than the visas they have available. So they will move the date back to Mar 2008 in the next bulletin and make slower movements forward after that.

Were the wait times for India always so large?

No. Till 2005, India was almost always current except for a few months when it would retrogress and catch up soon after.

What changed then?

Between 2005 and mid 2012, EB2- wait times kept varying between 3 to 5 years. The wait times for EB3 however just kept increasing to up to 10 years. In the recent past both EB2 and EB3 have 10 year wait times and these are going to get just worse. Basically the demand has just always been higher than the available supply and this causes the wait times to increase.A combination of factors in the recent past have compounded this increase.

1. Increase in EB1 demand: EB2 India used to get a lot of spillover from EB1. While it was supposed to get around 2800 green cards, in reality, including the EB1 spillover EB2 India ended up with over 10,000 green cards. This extra supply ensured that even with the additional demand it wasn’t increasing the wait times too much. In 2017, EB2 got no spillover at all from EB1. It is not that there are 40,000 people with PhD degrees who apply for green card every year. Indian consulting firms have exploited a loophole and a large portion of Indians who get an immigrant visa in this category get it as they ‘managed’ people in multiple locations. I want to stress here that several qualified people also come through the multi national manager category, just that the sudden increase in demand is because of the above reason.
2. Increase in EB2 ROW demand: Earlier, EB2 India also used to get spillover from the rest of the world. These days the demand from EB2 in the rest of the world has increased and the spillover is negligible.
3. Porting from EB3: If you have been on EB3 status for long enough, which you do as you wait for over 10 years, you gain sufficient work experience to upgrade your application to the EB2 category. This is good for EB3 forward movement but comes at the expense of EB2. So on the whole its net neutral for India.

What does the future look like?

Pretty bleak!

• In FY 2017, for Indian nationals, 13,082 green cards went to EB1, 2,879 green cards were given to EB2 and 6,641 to EB3. But almost all of the 2,879 in EB2 were upgrades from EB3. So, in effect, EB2 did not move at all and EB3 moved by 9,500.
• Now that EB1 is no longer current, there is going to be no spillover from EB1. EB2 and EB3 have priority dates that are very close. Technically everyone from EB3 can and will upgrade to EB2. So the priority dates will intersect and they they will advance together very slowly.
• Because EB2 ROW demand is high EB2 India will get no spillovers from there. But EB3 India will get spillovers from ROW. That is why in FY 2017, EB3 got more green cards than EB2. So in the future, EB3 will start moving faster and people in the EB2 wait list might downgrade to EB3 as it will be faster. If that sounds crazy, this is already happening for China. It is like being stuck in traffic where you think the other lane is moving faster and if you are impatient, you change lanes only to feel like the minute you shifted the older lane became faster.
• The best thing about all of this is that no one really knows how many people are in line. Some estimates come at over a million. The furthest that the priority date moved to is 1st of May 2010 for EB2. Then it retrogressed. In the interim period 11,000 applicants filed for adjustment of status in EB2 but are still pending as the dates retrogressed. Beyond April 2010, USCIS has no official numbers. Assuming half of the H1Bs go to India every year, that is around 40,000 Indian employees. There is a 10 year backlog now. So that is 400,000 principal applicants. Most applicants have atleast one dependent. If you average that to 1 dependent per applicant, that is 800,000 people waiting in line. This does not include people who are employed in L1 visas. If 10,000 people get a green card every year it would take at least 80 years to give green cards to everyone already in line as of 2018.

Waiting 80 years isn’t exactly an option, is it?

You have few not so great options if you want to remain in the country:

1. If you have a kid who is a US citizen, assuming the laws don’t change from now till then, he/she can sponsor you for a family based green card once they turn 21. This used to be a joke when the wait times were around 5/6 years, but its not so funny any more.
2. If you have a million dollars you can invest in the US and explore the possibility of an EB5 visa.
3. Hope for comprehensive immigration reform.