The backlog for EB-2 and EB-3 visa categories has hit unprecedented levels, with delays outpacing even those of the EB-5 Immigrant Investor Program.

According to U.S. government statistics, recent applicants from India, which has the highest demand, could face waiting periods ranging from 20 years to an astonishing 128 years before their visa is issued.

Several factors contribute to these extreme delays in EB-2 and EB-3 visa approvals. The global demand for these visas has surged, seeing over 15,000 applications monthly. However, the annual quota remains capped at 40,000 visas for both EB-2 and EB-3 categories. This cap includes family members eligible for visas, not solely the primary applicant.

In this article, we will delve into the processes for EB-2 and EB-3 visas and analyze government data to understand the reasons behind these significantly extended wait times for both new and existing applicants. We’ll look into alternative pathways for those in the queue for EB-2 and EB-3 visas.

Understanding EB-2 and EB-3 Visas

The EB-2 and EB-3 visas fall under employment-based (EB) categories, offering holders the opportunity for permanent residency in the United States, with the United States Citizenship and Immigration Services (USCIS) overseeing these programs.

Overview of the EB-2 Visa

The EB-2 visa caters to foreign professionals either with an advanced degree or outstanding skills. Eligibility for the visa with an advanced degree necessitates holding a master’s, doctorate, or equivalent degree from abroad. For those claiming exceptional ability, the applicant must meet at least three of the following criteria:

• Possession of a university degree or diploma in their field of expertise.
• A valid license or certification allowing professional practice.
• Notable acknowledgments for contributions to their industry.
• Affiliation with pertinent professional organizations.
• Proof of a high salary or other compensation indicative of superior ability.
• Recommendation letters from past and present employers verifying at least a decade of professional experience.

Insights into the EB-3 Visa

The EB-3 visa is designated for skilled workers and professionals from abroad whose occupations necessitate a minimum of a U.S. bachelor’s degree or its international equivalent, or a minimum of two years of vocational training. Applicants are required to have at least two years of work experience in their respective fields.

For both EB-2 and EB-3 visas, the holder’s spouse and their unmarried children under 21 years old are eligible to accompany or follow to join them in the United States. Additional family members may be eligible for family-based immigration in the future, particularly if the visa holder proceeds to apply for U.S. citizenship.

Procedures for EB-2 and EB-3 Visas

The application process for both EB-2 and EB-3 visa categories involves similar steps. Applicants must have a permanent, full-time job offer from a U.S. employer, and the employer must first receive labor certification from the U.S. Department of Labor (DOL), not USCIS.

Upon extending a formal job offer to an international worker, the U.S. employer is required to secure a certified ETA Form 9089, Application for Permanent Employment Certification, or PERM, from the DOL. This certification confirms that there are no available or qualified U.S. workers for the job and that hiring the immigrant will not negatively impact the wages of U.S. workers.

The processing of ETA Form 9089 for labor certification by the DOL can take up to six months. This certification is valid for only 180 days.

Following this, the U.S. employer must file Form I-140, Petition for Alien Worker, for the immigrant. This petition is for the noncitizen worker to obtain lawful permanent residency in the U.S. based on employment. The petition must include proof that the employer can afford the foreign worker’s salary on a permanent, full-time basis.

There is a $700 filing fee for Form I-140, which must be submitted to USCIS before the labor certification’s 180-day validity period ends. The processing time for this form can also extend up to six months.

Catastrophic Waiting Periods

If both ETA Form 9089 and Form I-140 typically require around six months each for adjudication, what accounts for the exceedingly prolonged waiting periods associated with EB-2 and EB-3 visas?

Legislative Caps on Visas

Over three decades ago, Congress established an annual global cap of 140,000 employment-based visas, a figure that has remained unchanged despite growing population sizes and demands.

Each year, out of this total, only 40,000 visas are allocated to the EB-2 visa program, and another 40,000 are set aside for the EB-3 visa category. This allocation includes not only the primary visa applicants but also their eligible dependents, such as spouses or unmarried children under the age of 21. No single country may claim over 7% (or 2,800) of the 40,000 visas available in either category.

In 2022, the Department of Labor processed over 15,000 PERM labor certification applications monthly, with the number surging to over 22,000 in March 2023 alone.

Yet, even after obtaining approval for labor certification (ETA Form 9089) and employment-based immigration (Form I-140), applicants are still required to wait for one of the mere 2,800 green cards allocated per year in their visa category and country to become available.

Projected Delays for EB-2 and EB-3 Visa Applicants

The U.S. Department of State issues a visa bulletin monthly, updating cut-off dates for processing along with other crucial details. These cut-off dates, which are subject to frequent changes, apply across all visa categories.

Applicants for immigration visas are eligible to adjust their status to become permanent residents of the United States only if their priority date precedes the cut-off date in the State Department’s monthly visa bulletin.

A priority date is established on the day USCIS receives the Form I-140 from an EB-2 or EB-3 petitioner. Applicants typically receive a receipt notice (I-797) by mail a few weeks after filing.

The November 2023 visa bulletin from the U.S. Department of State shows a significant rise in global demand for both EB-2 and EB-3 visas, marking the first occasion since FY 2018 that no country is designated as ‘current’ for these visas.

As of November 2023, the cut-off date for EB-2 visas is set at July 15, 2022, for all countries except for India and China, with China’s cut-off at October 1, 2019. For EB-3 visas, the cut-off date is December 1, 2021, for all countries except for China and India, with China’s cut-off at January 1, 2020.

EB-2 or EB-3 applicants with a filing receipt dated before these cut-off dates are eligible to receive a U.S. green card, except for those from India.

Intense Visa Backlogs for Indian Applicants

The situation of visa backlog, or visa retrogression, is particularly dire for Indian nationals compared to other countries.

Manjunath Gokare, the founder and partner at Gokare Law Firm with a focus on immigration, notes, “The number of Indians in queue for green cards is at a staggering 1.1 million; with most in EB-2 and EB-3 categories.”

As of March 2023, there are 395,958 approved I-140 petitions in line for an EB-2 visa, with India accounting for 90% of these applications, or 358,078. Additionally, there are 129,754 approved petitions for the EB-3 visa, 89% of which are from Indian applicants.

By November 2023, the cut-off date for EB-2 visas for Indians is set for petitions filed before January 1, 2012. For EB-3 visas, the Indian cut-off date is May 1, 2012. This indicates that only applicants who submitted their I-140 petitions over ten years ago are currently eligible to receive their green cards.

Given that nearly 400,000 approved Indian nationals are competing for one of the 2,800 EB-2 visas available annually, simple calculations suggest that recent applicants could face a wait of up to an astounding 128 years for an EB-2 visa, or 41 years for an EB-3 visa.

And with the volume of applications reaching 15,000 each month in recent times, the backlog is expected to further increase.

EB-5 Visas: An Alternative Analysis?

The EB-5 Immigrant Investor Program stands as a highly dependable path to obtaining employment-based permanent residency in the United States.

Unlike other visa categories, there’s no need for an employer to sponsor EB-5 visas. This autonomy allows EB-5 holders the freedom to live, work, and study anywhere across the U.S. and switch jobs without affecting their resident status.

To qualify, EB-5 applicants must invest a minimum of $800,000 in a new U.S. commercial enterprise that will generate at least ten full-time permanent jobs for American workers, with these positions lasting no less than two years.

Although the EB-5 visa wait times have seen an uptick due to various reasons, including closures of consular services during the pandemic, the typical application processing for an entire family is within 5 to 8 years.

Countries with high demand may experience longer processing times. Nonetheless, EB-5 visas not claimed in countries with lower demand are reallocated to applicants from countries with higher demand, such as India or China, the following year.

EB-2 and EB-3 visa holders have the option to transition to the EB-5 visa, involving additional steps.

While the EB-5 visa comes with a higher price tag compared to EB-2 and EB-3 visas, the shorter waiting periods, particularly for Indian nationals, make it an attractive alternative. For those with available capital, the EB-5 visa not only accelerates residency acquisition but also offers potential returns on the investment should the enterprise succeed.

Legislative Solutions for the Visa Queue

The extensive backlogs for EB-2 and EB-3 visas are deterring highly qualified immigrants from seeking entry into the United States, presenting long-term detrimental effects on the U.S. economy’s vitality.

To mitigate these backlogs, Congress has the option to augment the annual allotment of employment-based immigrant visas. Similarly, it could eliminate per-country visa caps, a measure already omitted in certain visa categories.

Furthermore, Congress could boost funding to USCIS or the Department of Labor, enabling the recruitment of additional staff to review petitions. Efficiencies could also be realized through internal improvements to the PERM labor certification process and the overall operations of USCIS.

For detailed insights into employment-based visas, including the EB-5 investor visa, consider arranging a free consultation with EB5AN today, or reach out via email at info@EB5AN.com.