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India EB-2 Priority Dates: Congress Holds the Key to Continued Improvement

by Erik Anderson

The recent India EB-2 priority date improvement announced in the May 2011 Visa Bulletin has sparked speculation regarding continued progress with the category.  Pressure is mounting on employers to file (or re-file) cases for employees in the EB-2 category in hopes that fresh EB-2 cases will lift their EB-3 applications from the unthinkable backlogs theyve faced for years.  But is this much ado about nothing?  Are things really improving for the EB-2 applicants?  Before jumping to the chat rooms for answers, it might help to know the reasons for the recent progress and where this may take the category through the summer:

  • There are 2,800 visas allocated to the India EB-2 category per year.
  • Currently, approximately 20,000 known India EB-2 applicants are awaiting visas.
  • Assuming demand and the availability of visas from other categories remain constant, an India EB-2 petition filed today should anticipate a seven- to eight-year wait for a visa.
  • The recent improvement with the visa dates was the result of the availability of 12,000 unused visas from other categories that can, in part, be applied to the India EB-2 category.
  • For the May 2011 bulletin, 2,000 additional visas were allocated to the India EB-2 category, leading to the priority date improvement from 05/08/2006 to 07/01/2006.
  • The Department of State is holding back on the allocation of the remaining visas to determine post May 2011 demand the number of EB-3 applicants re-filing their matters as EB-2 cases greatly affects the predictability of future demand in the category.
  • If demand unexpectedly jumps (i.e., more EB-3 to EB-2 filings than anticipated), the India EB-2 category could actually retrogress over the summer and fall 2011.

Needless to say, several factors affect priority date movement and, unfortunately, much of the process is driven by unknown and unpredictable variables.  Sufficient objective data is not available to help the State Department predict priority date improvement.  One thing is certain though absent some sort of relief, the India EB-2 cases will continue to face a bleak future with total processing times of at least seven to eight years.

We instinctively blame the State Department and USCIS for our priority date problems.  We even blame our lawyers.  Cases take too long to prepare; they take too long to be decided.  Weve all heard or thought:  If my case was prepared as an EB-2 instead of an EB-3 or filed earlier, I would have my green card by now.

The finger pointing, chat room tirades, terse emails and amped up conference calls might make the EB-2 candidate feel better, but the feeling is temporary, and things just keep getting worse.  Why?  Because its not going to do any good.  The employer, attorney, State Department and USCIS arent the ones who can relieve our India EB-2 woes.  The solution lies on Capitol Hill, and our elected officials need to be convinced that they can, and should, look at this issue apart from the polarized legalization debate.  Lets remind our friends on Capitol Hill of who the India EB-2 candidate is:

  • I am educated professional who holds either the equivalent of a U.S. Masters degree or a Bachelors degree with at least five years of work experience.
  • I typically earn more than $70,000 annually.
  • I pay U.S. taxes.
  • Once I receive my green card, I must always pay taxes as a U.S. resident to maintain my status, even if I am living overseas.
  • As a green card holder, I am likely to invest my savings and engage in activities that promote job growth in the U.S. economy.

Its hard to imagine that the United States discourages highly educated and highly paid taxpayers from permanently joining our communities.  The portrait of the India EB-2 candidate is much more attractive than that of the poor, uneducated immigrants of past generations who came through Ellis Island, looking for any type of work to survive.  Yet, these immigrants were welcomed to the United States.

The time has come for the India EB-2 applicant to focus their frustrations on who can solve their problems, namely Congress.  Let our representatives know who you are and what problems you face.  The India EB-2 candidate is good for the U.S. economy, good for the workforce and good for our communities.  Its an easy sell just get out there and make yourselves heard.

About The Author

Erik Anderson is a Partner at Goel & Anderson, where he directs the firm's Immigrant Visa Practice, overseeing the development of case strategies to address the recruitment and transfer of human resources in the United States and overseas. In this role he manages the visa and work permit needs of international professionals, managers, and executives. He also supervises the firm staff members who handle "green card" cases for employers across the country, particularly in the Information Technology, Biotech, Insurance, Healthcare, Food and Beverage, Media, and Entertainment industries. These include labor certifications, immigrant petitions, adjustment of status, and consular processing. Erik also directs the firm's individual and family-based immigration practice areas. Prior to entering private practice, Erik was appointed Deputy Secretary of the Board of Alien Labor Certification at the U.S. Department of Labor, and today he routinely handles matters before that agency, as well as United States Citizenship and Immigration Services, the U.S. Department of State, and nearly every state workforce agency in the United States.

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