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EB2 India - How long??

by Jay I. Solomon

The Visa Bulletin for January, 2011 shows a processing date for EB2 India of May 8, 2006.  That date has not advanced since September, 2010.  In the December Visa Bulletin, the State Department predicted "Visa Availability in the Coming Months."  For the Employment Second category, the prediction is "India: no movement."

The numbers tell the story:

Only 140,000 visas (or adjustment of status applications) for employment based applicants can be granted in each year.

Subject to some adjustment for numbers flowing between categories, only 40,040 visas can be issued for EB2.  When an immigrant enters the U.S. as an EB2, with a spouse and two children, four visa numbers are used - not one.  The average employment based immigrant family will use between two and three visa numbers.  That means less than 70,000 families will enter the U.S. each year as employment based applicants - and fewer than 20,000 families based with  EB2 preference category.  

And it gets worse.  

Each country is limited to no more than seven percent of the total of visas available, and if it appears that a country will use its full seven percent, then limits also apply within preference categories.  That doesn't matter for most countries, but is critical for those from India or China with EB2 classification.    This year, only 2,803 EB2 visa numbers can be allocated for India.

How long is the line?

Demand Data used by the State Department to determine the cut off dates used in the Visa Bulletin tell part of the story.  Here is what was used for the January, 2010 Indian EB2 determination:

Cumulative Demand prior  to:  India  Entire World
     (data as of 12/8/2010)    
January 1, 2006 0 0
January 1, 2007 13,125 18,025
January 1, 2008 22,825 33,275
January 1, 2010 22,925 33,525

At the rate of 3,000 visa numbers a year allocated to India EB2, and with a cumulative demand of 13,125 with priority dates earlier than 1/1/2007, it will take more than four years from now before all those with 2006 priority dates become current!!

Seven percent plus.... a bit of relief

While India and China are each limited to seven percent (2,803) EB2 visa numbers, if worldwide demand is  insufficient to use all available numbers in a particular Employment preference category, then the otherwise unused numbers may be made available without regard to the annual per-country limits.  Last year, this meant that  additional  EB2 visa numbers were made available to India and China.  Instead of 2,803 EB2 numbers, India was able to use 19,961.  If this keeps up, the four year backlog for those with 2006 priority dates may be much less.   The additional EB2 numbers for India are the result of a lack of demand worldwide.  In years when the economy has been strong, there has been no such drop down.  And this fiscal year, as there are 10,657 fewer total employment based visa numbers available world wide, it is likely that there will be far fewer unused numbers available to India and China.

But not so fast ...

Notice that "Cumulative Demand" only increases by about 9,000 from 1/1/2007 to 1/1/2008.  And notice it only increases by 100 for the two years 2008-2009.  Is it possible that only 100 Indians have EB2 priority dates between  January 1, 2008 and December 31, 2009?  The clear answer is "no." 

"Cumulative Demand" includes only those cases which are either at U.S. consuls ready to process immigrant visas or which are sitting on the USCIS Service Center shelf attached to pending I-485 petitions.   Recall that in July, 2007 all employment based preference categories became current, and thousands of applications were filed.  In August, 2007, visa availability retrogressed - and those I-485 filings are still sitting on Service Center shelves.    In the meantime, thousands of labor certifications have been approved, and thousands of preference petitions have been approved.  Some of those labor certifications were filed earlier than July, 2007.   In fact, the Department of Labor completed a backlog elimination project in late 2007 adding about 70,000 labor certifications to the line.

Applicants who did not file I-485s by August 14, 2007 are not included within Cumulative Demand.  Applicants whose preference petitions were approved after July 31, 2007 are not included within Cumulative Demand.  Applicants whose pending adjustment of status applications have been transferred from Service Centers to District Offices are not included within Cumulative Demand.   Applicants who are included in the EB3 Cumulative Demand who have upgraded to EB2 through the filing of a second PERM application are not included in Cumulative Demand.

Cumulative Demand is the visible tip of the EB2 Indian visa backlog.

So how long is the EB2 wait for Indians?

Predicting future visa arability is a guessing game - and predictions are often wrong.  However, based on experience and known data, I believe the following are realistic minimums:

2006 priority dates range from current to a four year wait.

2007 priority dates range from four years to an seven year wait

2008 priority dates more than seven years.

2009 priority dates more than eleven years.

2010 priority dates - beyond prediction

Is it really this bad?

If nothing changes, I believe the above predictions are realistic.  However, I anticipate that there will be change.  Even without comprehensive immigration reform, there are those in Congress who recognize who absurd this situation is.  Minor changes in the law can reduce or eliminate the EB2 (and the EB3) backlog.   These include not counting family members against the quota, and recapturing visa numbers wasted from prior years.   

A major change in the law can result in those in the existing employment lines being grandfathered into a shorter wait.    If the economy does not improve and the demand for employment visas remains low, extra EB2 numbers will be available for India.

Several bills have already been introduced that include these types of provisions, and I do expect some kind of change for the better long before an Indian with a 2010 EB2 priority date would reach the end of the line in the normal course.

This article was originally published on
(c) Copyright 2011 for Jay Solomon.

About The Author

Jay I. Solomon is a founding member of IMMLAW, the National Consortium of preeminent immigration law firms with affiliate offices in 16 gateway cities throughout the United States. He has practiced immigration law for more than twenty years and is a former President of the Atlanta Chapter of the American Immigration Lawyer's Association. He is a frequent speaker on immigration matters, both to the public, and to the bar. He is the author of numerous articles in the field including Priorities and Preferences: Keeping Place in the Immigrant Visa Line, Federal Publications, 1992; Immigrant Investors: A New Category, Prentice Hall Law and Business, 1990; Labor Certification, Strategies and Procedures, Immigration & Nationality Law Handbook, American Immigration Lawyers Association 1992. Mr. Solomon is a 1973 graduate of the University of Texas where he received the Juris Doctor degree with honors and was elected to the legal honorary societies Phi Alpha Delta and the Order of the Coif. Mr. Solomon has received the highest rating accorded by Martindale-Hubbell Law Directory (AV) and has been selected for inclusion in the "Bar Register of Preeminent Lawyers," in the area of Immigration Law, by Martindale-Hubbell.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.