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Ask Sophie: What’s the wait time for EB-2 and EB-1 green card categories for those born in India?

Here’s another edition of “Ask Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie,

Back in 2018, the Cato Institute estimated it would take 151 years for a person born in India to get a green card in the EB-2 category.

How has that changed in the wake of the pandemic, the Great Resignation, and the tech layoffs? How has the EB-1 category changed?

— Living in Limbo

Dear Living,

Thanks for reaching out to me! I remember the Cato Institute report and have long wondered the same thing. As you pointed out, a lot has happened since that report was issued in 2018. 😁

Before we dive into the wait times for the EB-2 and EB-1 green card categories, let’s go through a refresher applicable to everybody on how employment-based green cards are allocated.

Green card refresher

At least 140,000 employment-based green cards are available at the start of each fiscal year, which begins on October 1. If any family-based green card numbers from the previous fiscal year were unused, they are added to the employment-based green card total.

Each employment-based green card category is allotted a minimum of the total annual cap: The EB-1 (first preference for priority workers), EB-2 (second preference for an advanced degree or exceptional ability) and EB-3 (third preference for skilled workers) categories are allotted a minimum of 28.6% of the total annual cap. The EB-4 (special immigrants) and EB-5 (investor immigrants) categories have a minimum of 7.1% of the annual cap.

Each employment-based green card category also has a per-country cap of 7%. This cap is based on an individual’s country of birth (not country of citizenship). Individuals born in India and China are at a disadvantage since the demand for green cards from candidates born in these two countries far exceeds the number of green cards available to them.

If any EB-4 or EB-5 green card numbers are not used, they will be moved to the EB-1 green card category. If any EB-1 green card numbers are not used, they will be allotted to the EB-2 category, and if any EB-2 green card numbers are not used (which has not been the case for several years), the remaining will go to the EB-3 category.

How has the wait time changed for EB-2?

I often reference two main types of EB-2 category green cards: the EB-2 and the EB-2 NIW (National Interest Waiver). The EB-2 requires an employer sponsor to file for the time-consuming PERM labor certification process before submitting the EB-2 application to the U.S. Citizenship and Immigration Services (USCIS).

The EB-2 NIW requires demonstrating that the beneficiary’s work and abilities are in the interest of the U.S. to waive the PERM labor certification process. You can self-petition for the EB-2 NIW or an employer can sponsor you for it.

One thing has remained consistent since July 2007: The EB-2 category for individuals born in India (and China, too!) has had a cutoff date. That means there haven’t been enough EB-2 green card numbers for those approved for an EB-2. According to the Visa Bulletin for September 2023, the cutoff date in the EB-2 category for individuals born in India was January 1, 2011. For individuals born in China, it was July 8, 2019, and for individuals in all other countries, it was July 1, 2023.

The chart below shows the EB-2 wait times for individuals born in India since 2018. I used data from the USCIS, the U.S. Department of Homeland Security (which oversees the USCIS), and the U.S. Department of State, which oversees consular processing and issues the monthly Visa Bulletin.

In the chart, the projected wait time of 106 years in 2018 for individuals born in India is lower than the Cato Institute’s 151-year estimate. That’s because the Cato Institute report, which was issued in June 2018, used the latest data available at the time, which was from FY2016 and FY2017. I used FY2018 data.

The projected EB-2 wait time hit a high of 221 years, but that’s due to the shutdown of all in-person services in March 2020 at the USCIS and at U.S. embassies and consulates, as well as a hiring freeze, which created significant backlogs.

EB-2 GREEN CARD WAIT TIMES FOR INDIVIDUALS BORN IN INDIA
Year Primary EB-2 Beneficiaries Awaiting Green Card #* Dependent EB-2 Beneficiaries** Awaiting Green Card # EB-2 Applications Waiting for Green Card #s EB-2 Green Cards Issued to India-Born Individuals Projected Wait for India-Born Individuals
2018

(as of April 20)

216,684 217,474 434,158 4,096 106***
2019 Not available Not available Not available 2,908 Not available
2020

(as of April 20)

298,611 275,396 574,007 2,599 221
2021

(as of April 21)

310,177 300,060 610,237 28,246 22
2022

(as of March)

269,539 260,747**** 530,286 59,431 19
2023

(as of March, the latest available)

358,078 346,398**** 704,476 3,945***** 12
SOURCES:

U.S. Citizenship and Immigration Services, U.S. Department of Homeland Security, U.S. Department of State

NOTES:

* USCIS Form I-140, I-360, I-526 Approved EB Petitions Awaiting Visa Final Priority Dates (Fiscal Year, Quarters 1 and 2)

** Dependent EB-2 beneficiaries are based on the ratio of primary to dependent spouse and children applicants from DHS’s Yearbook of Immigration Statistics, Table 7.

*** Projected wait is lower than the Cato Institute estimate, which used the ratio of primary to dependent beneficiaries from FY2016, and EB-2 green cards issued in FY2017. This chart uses FY2018 data.

**** Used 2021 ratio of primary to dependent spouse and children applicants, which is the latest available, for 2022 and 2023.

***** Conservative estimate based on 197,091 total employment-based green cards available for FY2023.

During 2021 and 2022, most U.S. embassies and consulate offices remained closed or had limited operations, which meant many family green cards went unused since most family green card candidates live outside the U.S. This significantly benefited employment-based green card candidates, most of whom are already living and working in the U.S. on a work visa.

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