Green cards are limited each year, and Congress sets quotas for different preference categories. Applicants are subject to backlogs when demand exceeds supply.
Each month, the State Department publishes a Visa Bulletin that updates waiting lists of employment-based green card applicants. Your “priority date” determines where you stand in the green card backlog.
EB2 Visas
Green cards are the end goal for many foreign nationals seeking employment-based immigration benefits. For this reason, it is important to stay informed about the latest changes in employment visas and their availability.
Every month, the Department of State publishes a Visa Bulletin that summarizes the availability of immigrant visas (green cards) based on preference categories, countries of chargeability and priority dates. The date a petition is filed for an immigrant visa by an employer, such as through the PERM Labor Certification process, establishes the beneficiary’s priority date. Priority dates are then allocated to applicants in a chronological order until the annual numerical limit for the particular category is reached. Once the limit is reached, there are typically years of backlogs for applicants with higher priority dates.
The EB2 category is reserved for individuals with advanced degrees in science, technology, engineering and mathematics (STEM) fields or who have exceptional ability in such fields. STEM employees are often in high demand, and their EB2 visas can lead to lengthy wait times for green cards because the category is limited each year.
For the past two fiscal years, the demand for EB2 visas has been so great that the government temporarily doubled the number of available green card slots for this category. However, the boosted numbers proved insufficient to satisfy escalating applicant demand. As a result, the visa bulletin has shown significant backlogs for this category throughout the last few months of this fiscal year.
However, the visa bulletin for October shows that the EB2 backlog has been significantly reduced for this fiscal year. This is a good sign, and it may be an indicator that the EB2 visas will become more readily available again in the future.
In the meantime, foreign nationals who are in the EB2 visa category should consider taking advantage of this opportunity and working hard to advance their careers so they can qualify for an EB2 green card as soon as possible. As an added bonus, those who have previously downgraded their EB2 applications to the EB3 category may now be eligible to upgrade back to the EB2 category, as the EB2 wait time has been reduced significantly.
EB3 Visas
If you are a professional or skilled worker who does not fall into the first preference category, or an investor who plans to make a significant investment in a new commercial enterprise that will create jobs for US workers, you may qualify for an employment-based green card under the EB-3 visa category. This is a powerful option for individuals with advanced degrees or extraordinary ability in their fields.
To obtain an EB-3 visa, your sponsoring employer (who must be lawfully operating in the United States) must submit a permanent labor certification request to the Department of Labor. This step demonstrates that your employer tried to recruit American workers and could not find them, and that the job offered is a permanent, full-time position with a minimum salary of at least the prevailing wage.
Once your labor certification is approved, your sponsoring employer can file an immigrant visa petition on your behalf with the USCIS. However, you must wait until a visa is available for your category and country of chargeability, as indicated by the Visa Bulletin.
The Visa Bulletin contains two charts/tables each month, the “Final Action Dates for Employment-Based Preference Cases” and the “Dates for Filing Employment-Based Application for Adjustment of Status.” Each time the State Department updates the visa bulletin, it is important to understand which chart you must follow for your category and country of chargeability. If your priority date falls on or before the final action date for your category and country of chargeability, you can file your green card application (Form I-485) with USCIS in the United States, or at a U.S. consulate abroad if you are in the process of Consular Processing.
Fortunately, recent developments are showing that the EB-3 processing backlog is beginning to reduce. In fact, the April 2024 Visa Bulletin showed significant advancement for this category, reducing expected wait times by more than two years. However, this progress is unlikely to continue for very long, and it would be advisable to consult with an experienced immigration attorney to determine how this development might affect your specific situation.
H-1B Visas
H-1B visas are nonimmigrant work visas granted to workers with specialized skills in specific fields. Each year, employers may submit a limited number of petitions for H-1B workers. The petitions are then randomly selected in a digital process known as the “H-1B lottery.” Those chosen to receive the H-1B visa will begin employment in the United States no later than April 1 of the following year.
The H-1B visa is often a stepping stone to green card status in the United States. The Immigration Act of 1990 allows foreign nationals who obtain H-1B visas to change their status to permanent residency (green cards) under the doctrine of “dual intent.” However, in order to do so, the worker must first secure an H-4 visa for spouses and children, then apply for the green card.
Congress has a variety of options to ease the path for dual-intent holders and other employment-based immigrants. For example, the Violence Against Women and Department of Justice Reauthorization Act of 2005 permitted domestic violence victims in H-4 visa status to seek work authorization.
However, the law did not provide a path to citizenship for all victims of domestic abuse. In fact, most H-4 holders still cannot get work authorization.
Green cards are assigned through a system of preference categories, with most tech workers falling into the second preference category, which is reserved for professionals holding advanced degrees. However, there are caps on how many visas are available in each category per year, and there is a backlog of applicants who have been waiting for years to get a green card.
Congress is seeking to address the problem by eliminating the per-country cap for the EB-2 preference category and increasing the number of visas allocated in all the other categories. However, critics argue that the bill would only increase wait times for citizens of high-volume countries like India, rather than solving the problem completely.
Other potential solutions include changing the way the U.S. government determines the prevailing wage, and allowing employers to sponsor H-1B visas for workers who are subject to a labor certification application by the U.S. Department of Labor. This would ensure that prevailing wages are actually being paid and prevent abuses of the visa program.
Adjustment of Status
A common way for people to get their green card is by filing an adjustment of status (form I-485) application while they are already in the United States. This is generally used by those who entered the country on a nonimmigrant visa or under the Visa Waiver Program and want to become permanent residents.
Generally speaking, an adjustment of status applicant can receive their permanent resident card, or green card, in about three to four years. This is longer than the processing times of a PERM Labor Certification or I-140 petition, but it can be a good option for those who are in the United States and don’t want to have their application delayed by having to leave the country again.
One important aspect of the adjustment of status process is that an immigrant who is in lawful status can apply for work authorization and travel documents while their case is pending. These can be extremely useful, especially if the immigrant has a family with U.S. citizenship that also wishes to work in the country. In addition, the pending adjustment of status can help protect an immigrant’s legal status in the event that they change their job or are fired from their current employment while their green card application is pending.
When it comes to navigating the latest employment-based green card news, it is important for applicants to pay close attention to the monthly Visa Bulletin that USCIS publishes. The “Dates for Filing” chart, as well as the final action dates, can have an impact on when an immigrant can finally receive their physical green card through an adjustment of status or consular processing abroad.
It is also helpful for green card applicants to start the application process as early as possible. This can be particularly beneficial for those in high priority categories, such as Indians, who may see their wait time increase significantly if they don’t begin the process until after their priority date becomes current. In fact, it is important for anyone who is considering applying for a green card to speak with a qualified immigration attorney before their biometrics appointment.