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.

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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

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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.

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.

Moreover, if the green cards allotted to countries in each category are not used, then the individuals who have waited in the green card line the longest — in other words, they have the earliest priority date — will be given a green card in that category regardless of their country of birth. Individuals born in India have typically waited the longest and therefore were issued record EB-2 green card numbers during 2021 and 2022.

Now individuals born in India face about a 12-year wait for an EB-2 green card. While that’s much better than the 106-year wait in 2018, many parents have children who are aging out of their immigration petition, and many individuals are seeking immigration alternatives.

How has the EB-1 category changed?

The EB-1 category consists of three green cards: the EB-1A extraordinary ability green card, the EB-1B outstanding researchers green card, and the EB-1C green card for multinational executives and managers. Of the three, only the EB-1A allows for an individual to self-petition. The EB-1B and EB-1C require employer sponsorship.

According to the September 2023 Visa Bulletin, cutoff dates in the EB-1 category are in place for all countries: For India, the cutoff date was January 1, 2012; for China, it was February 1, 2022; and for the rest of the world, it was August 1, 2023.

Even though a cutoff date in the EB-1 category was implemented in January 2023 for individuals born in India (and China, too!), the EB-1 category remains the quickest option for those born in India (and China) unless cross-chargeability is an option.

Due to the per-country cap, each individual applying for a green card must be assigned to a country. If your spouse was born in a country other than India, you can be assigned to your spouse’s country of birth rather than India.

As you can see, individuals born in India faced an estimated wait time of 8 years for an EB-1 green card in 2018. That estimate is higher than the 6 years estimated by the Cato Institute, which relied on FY 2016 and FY 2017 data. Currently, the wait time is half of what it was in 2018.

It’s clear that lawmakers need to reform our outdated and restrictive immigration system by adopting the changes President Biden has sought, including:

• Adjusting the number of employment-based green cards available based on conditions within the U.S. labor market and demands from U.S. employers.
• Eliminating the per-country caps on employment cards.
• Excluding international PhD graduates in STEM fields in the U.S. from the annual employment-based green card cap.
• Exempting spouses and children of green card holders from the annual employment green card cap.

My hope is that U.S. lawmakers improve the immigration system to do a better job of retaining promising international students attending American universities, innovative international startup founders, and talented international professionals.

You’ve got this!

— Sophie

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Sophie Alcorn, founder of Alcorn Immigration Law in Silicon Valley, California, is an award-winning Certified Specialist Attorney in Immigration and Nationality Law by the State Bar Board of Legal Specialization. Sophie is passionate about transcending borders, expanding opportunity, and connecting the world by practicing compassionate, visionary, and expert immigration law. Connect with Sophie on LinkedIn and Twitter.

Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!