Dealing with a backlogged priority date

If you are a Chinese or Indian national, unfortunately, your application for an EB-2 and EB-3 visa will take longer than applicants from other nationalities. Why? The United States’ immigration policy includes numerical caps on how many visas can be given in a category for a particular year, and within these limitations are also restrictions on how many people from each nationality are eligible. In short, it is more difficult for you to obtain a visa as a Chinese or Indian national because too many of your neighbors are also trying to obtain a visa.

The total number of available visas in a particular employment category depends on the total number of visas available for that year, plus any unused family visas. In the employment category of visas, the minimum number per year is 140,000. In addition to the minimum 140,000 visas, employment visas also receive any additional unused visas from the family-sponsored visa category. 

However of the 140,000 (plus the unused family visas), only 28.6% of these visas can be used in the EB-3 category, equating to around 40,000 EB-3 visas available each year. The EB-2 visa shares the same limitations and percentiles as the EB-3 visa. Furthermore, the United States has implemented a 7% annual cap on immigrants from any particular country, in both the family visa category and employment visas. So, if the number of employment visas was 140,000 for the year, and if the family based visas were 226,000 (their limit); then 7% of 366,000 (140,000 + 226,000) would only be 25,620 individuals, from any one nationality, eligible to receive visas between the two broad categories. 

The United States Customs and Immigration Services department receives well over the 25,620 allowed applicants from India and China each year. In December 2017, nationals from China and India who applied in December 2005 just became eligible for their priority dates.

There are both people and lawmakers who wish to get rid of the nationality cap, as well as adamant believers that this would unfairly skew the available employment visas. Proponents for getting rid of the nationality cap argue that it is unjust to limit exceptional and qualified candidates, solely based on their nationality. However, others argue that the cap allows all nationalities to have a chance in receiving a employment visa if qualified, and getting rid of the nationality cap would allow Indian and Chinese nationals to flood the system. 

The United States needs skilled workers, but the long waiting times do not provide incentive for foreign nationals, especially in India and China, to want to apply to work and live in the United States. The United States needs to update and change their antiquated visa numbers and per country caps, however in the meantime, there are other options for Indian and Chinese nationals. Indian and Chinese nationals can apply for the L-1 intra-company transfer visa which allows an applicant to live and work in the United States for up to 7 years before renewing the visa. The L-1A and L-1B visa also allow for holders to apply for legal permanent resident status after working abroad for at least one year. The L-1A visa, for managers and executives, also has the benefit of not requiring your employer to file a PERM labor certificate and lessens your wait time by almost a year when applying to a EB-2 or EB-3 legal permanent resident visa. For more information about the L-1 Visa, please see our article on this topic.

The H-1B visa, a diversity lottery visa, is another option for Indian and Chinese nationals with professional degrees and highly-skilled workers, however this visa has an annual cap of 65,000 people. For more information on the H-1B Visa, please see our article on H-1B Visas. Chinese and Indian nationals are unfortunately stuck in a backlogged and unfriendly United States immigration system. Fortunately, there are some ways to get around this waiting game, if you have the right qualifications and credentials. In order to fully explore your options and make sure you are on the best path for you, an experienced Immigration Attorney can be extremely helpful in assisting you to make the best decision regarding your United States visa.

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