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Tuesday, May 28, 2024

More Than 1 Million Indians Waiting For Highly Skilled Immigrant Visas

LawMore Than 1 Million Indians Waiting For Highly Skilled Immigrant Visas


U.S. government data confirm that more than one million Indians now wait in employment-based immigration backlogs, highlighting problems in the U.S. immigration system. The data from U.S. Citizenship and Immigration Services indicate many highly skilled professionals from India face potentially decades-long waits to gain permanent residence (a green card) due to a per-country limit and the low annual quota. The waits create personal turmoil for individuals and families, affecting America’s ability to attract and retain talent.

Analysis Of USCIS Data

Over 1.2 million Indians, including dependents, are waiting in the first, second and third employment-based green card categories, according to a National Foundation for American Policy analysis of USCIS data. The data reflect approved I-140 immigrant petitions as of November 2, 2023.

NFAP analyzed the data and calculated the dependents to arrive at an estimated backlog in the top three employment-based immigration categories (excluding “other workers”).

First Preference: According to USCIS, 51,249 principals are in the employment-based first preference, also known as EB-1. NFAP estimates an additional 92,248 dependents for a total of 143,497 Indians in the first preference backlog. EB-1 includes workers with extraordinary ability, outstanding professors and researchers and multinational executives or managers.

Second Preference: According to USCIS, as of November 2, 2023, there were 419,392 principals in the employment-based second preference, also known as EB-2. NFAP estimates an additional 419,392 dependents for a total of 838,784 Indians in the second preference backlog. EB-2 includes professionals holding an advanced degree and persons with exceptional ability in the sciences, arts or business.

USCIS data from 2020 suggest that the Indian backlog in the EB-2 category rose by more than 240,000 or 40% in approximately three years.

Third Preference: According to USCIS, 138,581 principals are in the employment-based third preference, also known as EB-3. NFAP estimates an additional 138,581 dependents for a total of 277,162 Indians in the third preference backlog. EB-3 includes skilled workers and “members of the professions whose jobs require at least a baccalaureate degree.” (Unskilled or “Other Workers” in the third preference are not included in the analysis.)

According to the National Foundation for American Policy’s analysis of USCIS data, there are 1,259,443 Indians in the top three employment-based immigration categories as of November 2, 2023.

USCIS says the agency’s data does not “identify or exclude multiple petitions by the same petitioner or beneficiary.” However, NFAP based its estimates of dependents on the ratio of employment visa principals to dependents in FY 2021 and FY 2022 for all countries of origin. That would underestimate dependents for Indians because their long waits in the backlog mean they would be older than other employment-based immigrants and more likely to have spouses and multiple children.

Without Congressional action, the backlog will continue to increase. In 2020, the Congressional Research Service (CRS) estimated the backlog for Indians in the top three employment-based green card categories would reach 2,195,795 individuals by FY 2030 and take 195 years to eliminate the backlog.

The Visa Bulletin And Chinese Immigrants

The per-country limit (discussed below) also affects would-be employment-based immigrants from China and the Philippines. NFAP estimates that nearly 148,000 Chinese professionals and their dependents are waiting in the employment-based green card backlog, with approximately 83,000 in the second preference and 41,000 in the third preference.

According to the May 2024 Visa Bulletin, Indians can receive their green card in the employment-based second preference only if their application was filed before May 15, 2012. While that provides a general sense of an applicant’s wait time, for Indians, the dates in the Visa Bulletin often do not advance monthly and sometimes may regress. For Chinese, the date in the May 2024 Visa Bulletin is June 1, 2020. For comparison, for the rest of the world, the application filing date to be eligible to receive a green card in the second preference is last year—February 15, 2023. (See here for background on interpreting the Visa Bulletin.)

“Applicants for immigrant visas who have a priority date earlier than the application date in the [Visa Bulletin] chart may assemble and submit required documents to the Department of State’s National Visa Center,” according to the State Department.

The Reasons For The Long Green Card Wait Times

Two parts of U.S. law created the long wait times for employment-based immigrants. In 1990, Congress set the annual limit for employment-based green cards at 140,000, including dependents, a level far from high enough since the demand for technical talent has exploded in recent decades due to the internet, smartphones, AI, e-commerce and other innovations. At the same time, lawmakers retained a per-country limit of 7%. The per-country limit has most harmed highly skilled professionals from India, China and the Philippines due to larger populations.

Indians have suffered the brunt of the law’s impact. Due to the per-country limit, only 7,820 Indian immigrants received employment-based green cards in the EB-2 category in FY 2015, even though employers submitted tens of thousands of green card applications for Indians years earlier than individuals from other countries who received green cards that year.

In 2022, Senator Charles Grassley (R-IA), supported by Senate Republican Leader Mitch McConnell, blocked a reform that would have ended the long waits for many employment-based immigrants. Analysts say Grassley’s blocking of the exemption for highly educated immigrants caused potentially irreparable harm to America’s ability to attract and retain foreign-born scientists and engineers in the United States.

When the House of Representatives passed the America COMPETES (CHIPS) Act, it included an exemption from annual green card limits and backlogs for foreign nationals with a Ph.D. in STEM fields and those with a master’s degree “in a critical industry.” During the House-Senate conference committee on the bill, the Biden administration, Rep. Zoe Lofgren (D-CA), businesses and universities argued for keeping the provisions. However, Grassley, the ranking Republican on the Senate Judiciary Committee, blocked the immigration measures from becoming law.

The Impact Of Long Green Card Wait Times

In July 2023, a Forbes article reported on Canada’s program to entice H-1B visa holders. The number of applications was so overwhelming that the 10,000 limit was reached in less than 48 hours. “The response is likely a warning sign to U.S. policymakers that many highly sought foreign-born scientists and engineers in the United States are dissatisfied with the U.S. immigration system and seeking other options.”

Beyond the hit to U.S. competitiveness and companies’ ability to retain talent in the United States, the long waits for employment-based green cards exact a human toll.

Emily Neumann, a managing partner at Reddy Neumann Brown PC, noted a recent application for a client who has needed to renew his H-1B five times while waiting for his green card priority date. “He’s been with the company for 16 years. Still no green card solely because he was born in India.” An H-1B denial, layoff or economic downturn could force him to leave the country.

Roshan Taroll’s story illustrates the impact of the employment-based green card problem. It shows the immigration system creates fear and uncertainty that sways the course of people’s lives, including the children of highly skilled immigrants.

Roshan was born in India and came to America as a 10-year-old with his parents in 2008. His mother worked in H-1B status for a U.S. technology company, which sponsored her for an employment-based green card in 2010. Eight years later, in 2018, Roshan’s mother died before she was granted her green card. The low annual employment-based immigrant visa limit and the per-country limit affecting Indians caused the long wait and prevented her from becoming a permanent resident.

Family members can use the employment-based visa petition of a deceased principal to gain permanent residence. However, Roshan turned 21 and “aged out” of being included on his mother’s application before the “priority date” arrived. (See this interview and the website of Improve The Dream, which focuses on “child dependents of long-term visa holders.”)

Even though Roshan grew up in Boston, he needed to obtain F-1 international student status to attend Boston College. After graduating, he has worked for a company on Optional Practical Training for three years.

Roshan has experience in a high-demand field—semiconductor manufacturing—but due to the low annual limit on H-1B petitions, his company could not secure an H-1B visa for him despite attempts in three separate H-1B lotteries. (According to analysts, the yearly limit of 85,000 new H-1B petitions for companies is reached annually because it is inadequate for a technology-based economy with a labor force of more than 160 million people.)

As a result, even though he has lived in America since he was 10 years old, Roshan will soon have to leave the United States. He appreciates the company’s efforts to find a location where he can use his education and training to work for the corporation in another country.

“It’s been challenging,” said Roshan. “With my mother’s passing, she moved us to this country to give us a better life and ensure that we were educated and did well. Now that I have to leave, I won’t be able to fulfill her wishes of living my life in the United States.”





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