Under current U.S. immigration law, 140,000 employment-based (EB) immigrant visas (green cards) are available to foreign workers every year. This number is broken down into preference categories, including the EB-1, EB-2, and EB-3 categories (the most widely used employment categories), as well as EB-4 (religious workers and other special immigrants), and EB-5 (investor) categories. The number is further broken down by an applicant’s country of birth resulting in approximately 2,800 available visas per country per EB category per year. Individuals born in countries with higher demand, including India and China, have significantly longer wait times to obtain green card approval due to the limited annual availability.

Each month, Charles Oppenheim of the U.S. Department of State provides an estimated calculation of immigrant visa availability for the following month, and this information is published through the State Department’s Visa Bulletin. These estimates form the basis for an individual’s eligibility to apply for an immigrant visa depending on his/her preference category and country of birth.

On June 10, Oppenheim made dire predictions for immigrant visa availability for the rest of 2009 and into 2010. The increased demand in the EB-4 “religious worker and other special immigrants” category, as well as the EB-5 “investor” category, is partly to blame. Most years there are significant unused numbers from those categories, which then pass through to the EB-1 and EB-2 categories. Without these additional numbers, EB-1 and EB-2 categories will be stretched very thin. Those born in India and China already experience backlogs in the EB-2 category, and it is anticipated that this will become much worse if there are no unused numbers that flow from the EB-4 and EB-5 categories.
 

The EB-2 category is currently available for those born in any country other than India or China. Oppenheim did not say whether these individuals could now experience backlogs similar to India and China due to the lower numbers.

However, Oppenheim did have bad news for EB-2 applicants born in India and China. Like all other countries, India and China have a limited allocation of 2,800 EB-2 immigrant visas per year, plus any pass down from the EB-1, EB-4 and EB-5 categories, as well as any pass across from other unused EB-2 numbers from other countries. The EB-2 category for both India and China could become unavailable as early as August 1, 2009 due to anticipated demand, which could result in significant continuing backlogs of many years and possibly even a decade or more.

As for the EB-3 category, numbers will be unavailable for the rest of the fiscal year (ending September 30, 2009) for all countries. At the start of the next fiscal year on October 1, 2009, Oppenheim predicts China will be backlogged nearly seven years and India could face an anticipated nine year backlog.

The EB-1 category has not experienced any retrogression for years and, according to Oppenheim, that will continue to be the case for anyone not born in India or China. However, for those born in India or China, retrogression could occur starting as early as August, as demand for this category has remained heavy throughout the year. In addition, the EB-1 filing rate for individuals from other countries has remained high throughout the year. Therefore, unused numbers from those countries will no longer pass across to the India and China EB-1 categories.

This entry was authored by Chad Graham.