Shall Chinese and Indian EB-2 Applicants Have to Wait 9 Years for a Green Card?
Joe Jian Zhou, Attorney at Law
On June 9th the Department of State (DOS) announced the Visa Bulletin for July 2009. The new cut-off date for China-born EB-2 applicants was set back to January 1st, 2000, joining India born EB-2 applicants in a wave of significant retrogression. This is a great shock to Chinese EB-2 applicants, and many EB-2 applicants are in a state of panic, hopelessness, and disappointment. Does the newly announced cut-off date really mean that a China-born EB-2 applicant has to wait for more than 9 years before receiving a green card? Fortunately, this 9 year wait time is unlikely; we are confident that we will see significant forward movement of the EB-2 category cut-off date for China and India in the October 2009 Visa Bulletin.
As many employment-based immigration applicants are familiar with, DOS sets visa number cut-off dates every month for each category. The visa number cut-off date determines whether an immigration visa is available to an applicant within a specific category. Only if your priority date (the date that your I-140 or PERM was first filed) is on or prior to the announced cut-off date, do you have the eligibility to receive an immigration visa: meaning, you can file an I-485 adjustment of status and may receive I-485 approval (green card) when it is processed. Though the EB-2 visa number is current worldwide, due to the statutory, no more than 7% per-country allocation restriction, the overwhelming oversubscriptions of China and India born aliens in the EB-2 category have resulted in these two countries having long visa number backlogs.
For a number of years, between May 2001 and October 1st, 2005, the monthly Visa Bulletin had a strong streak of current visa number availability in the EB-2 category for all countries. Since that time, when the Department of State released the October 2005 Visa Bulletin showing a 53 month backlog for China and a 71 month backlog for India in the EB-2 category, the trend in visa number availability dates has been continuously up and down. For the past almost 4 years, with the exception of July-August of 2007, there has been a consistent backlog in the EB-2 category, ranging anywhere from 16 months to the current wait-time of 9 and a half years. Between July 1, 2007 and August 17, 2007, the State Department declared all employment-based categories as current and open. During this time, the first reprieve from backlog in over a year and a half, applicants could once again submit the I-140 and I-485 concurrently. Because of this open period, a total of 234,000 I-140 petitions, and more than 300,000 I-485 applications, were filed to the USCIS in short order. This influx resulted in wholesale visa unavailability in August 2007 and unrelenting backlog from September 2007 until now.
Along with the consistent up and down trend of visa availability there is a coinciding ebb and flow of complaints and lobbying around the issue. As the backlog increases, so does the level of complaints and amount of activism, and soon after we often see a change of law or policy in response. There are a variety of factors that account for the aforementioned fluctuations in the cut-off date posted on the U.S. Department of State’s monthly Visa Bulletin, of which, changes in law or policy are the most significant. For example, the “American Competitiveness in the Twenty-first Century Act of 2000” recaptured worldwide unused employment-based visas for the fiscal years of 1999 and 2000, and the recaptured visa numbers were distributed according to priority date without per-country limitation.
Since October 2008 the cut-off date for visa availability has continuously retrogressed. Currently, the backlog in the EB-2 category for China and India is operating at an unprecedented level. The fact that only those individuals with a priority date before the year 2000 have visa availability is equivalent to visa numbers being wholly unavailable for the last months of 2009 fiscal year, which ends September 30, 2009. Very few, if any, EB-2 applicants with a priority date earlier than January 1, 2000 are still pending. The only difference between such a drastically retrogressed priority date and an altogether unavailable bulletin status is the semantic difference arising from the fact that it seems more positive to set a numerical date than to declare the visas in question categorically unavailable. When the fiscal year of 2010 starts on October 1, 2009, we expect that the cut off date for China and India born aliens will move to a reasonable date, most likely in 2005 for China, and a less progressed date for India.
In response to the current dramatic backlog there is a renewed push for statutory and policy change. For example, on June 4, 2009, Senator Kirsten Gillibrand introduced the Accept Chinese Talent Now Act of 2009 (ACT Now). The ACT Now Act, which was driven by the Zhang & Associates P.C. sponsored Legal Immigrant Association, seeks to recapture an additional 1,000 visa numbers for the Chinese employment based category.
How to Respond
Despite the important lobbying efforts for policy reform it is likely that significant backlog and retrogression will continue in the EB-2 category for the near future. Even with the imminent start of the new fiscal year, on October 1st, 2009, we predict persistent backlog for EB-2 category for China and India born aliens. To avoid these visa number restrictions, we suggest that applicants consider applying via EB-1(a) or EB-1(b) categories, under which visa numbers are currently available worldwide. In the less likely case that there is future retrogression in the EB-1 category we expect that such retrogression should be insignificant.
Moreover, if you are not qualified for EB-1 case at this point, you should still file EB-2, even EB-3, if you qualify so. In addition to the benefit of preserve priority date as stated below, it will also offer you other benefits such as allowing you to extend H-1B beyond 6 years of limitation if you meet a certain conditions. Of course, you can always file an updated category of petition when circumstance changes, and there is no prohibition on filing multiple immigration petitions.
Please also remember two important rules that may benefit you: once you have an approved I-140 in an EB-1, EB-2 or EB-3 case, your priority date established by that case may be carried over to future EB-1, EB-2 or EB-3 cases; in addition, if your spouse was born in a country other than China or India, you may receive an immediate visa number in the EB-2 category by using the cross-chargeability rule.
Zhang & Associates, P.C. has extensive experience in EB-1 and EB-2 NIW cases, and we can offer strategic legal advice for your green card path, based on your particular situation.
*Attorney Jian Joe Zhou is the Co-managing attorney at Zhang & Associates, PC (www.hooyou.com). Joe has more than 9 years of experience in employment/business immigration (EB-1, NIW, PERM) and international law practice Joe received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law. He may be reached at email@example.com . Ms. Elana Fogel contributed to this article.
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