Situation and Analysis of EB-2 Quota For Chinese  and Indian-Born Applicants

Two dates –“Priority Date” and “Cut-off Date” are very important to EB-2 and EB-3 immigration applicants. If you apply for your green card through a PERM application, the “Priority Date” is the date when the Labor Department receives the application. If the applicants do not need to file labor certification, such as with an NIW petition, the date when the USCIS receives the immigration application is classified as the “Priority Date”. We should notice that, whether a labor certification is required, the applicant can only obtain a “Priority Date” after his/her I-140 petition is approved. A “Priority Date” will be shown on the I-140 approval notice. For example, Dr. Wang filed his NIW application on October 10, 2008, and the petition was approved in April 2009. So, October 10, 2008, is Dr. Wang’s priority date.

What about Cut-off Dates? Because of the quota issue, the U.S. State Department issues a visa waiting list at the beginning of every month , referred to as the “Visa Bulletin.” A date will be shown for each category, including for both employment-based and family-based immigration categories.  In such instances, only the applicant whose priority date is before this date is eligible to file his/her immigration petition. This date on the visa bulletin is known as the “Cut-off Date”. For example, in February, the date of EB-2 category applicants born in China is February 15, 2005. This is the cut-off date.

Currently, an applicant may only file his/her I-485 application if his/her priority date falls before the respective cut-off date.  Meanwhile, if the application has already been filed, it could only be processed when his/her priority date falls before the cut-off date. So, returning to Dr. Wang for instance, his priority date is October 10, 2005, which is later than the cut-off date February 15, 2005. Thus, Dr. Wang cannot submit I-485 until the priority date falls before the cut-off date.

In Zhang & Associates’ 13 years of experience, we have noticed that before October 1, 2005, applicants of EB-2 usually had available visa number to submit an I-140 and I-485 petition concurrently. After October 1, 2005, the cut-off date fell back by approximately two years. Fortunately, between July 1, 2007 and August 17, 2007, all the employment-based categories have been opened. Applicants could submit I-140 and I-485 concurrently once again. Because of this, a total of 234,000 I-140 petitions and more than 300,000 I-485 applications have been filed to the USCIS. Understandably, this resulted in the current long waiting time.

On May 8, the U.S. State Department released the latest Visa Bulletin for June 2009. The cut-off dates for EB-2 applicants born in mainland China remain unchanged (02/15/2005) while the dates for Eb-2 applicants born in India move backward more than four years to January 1, 2000.  Thus, the EB-2 category is available only for those applicants that were neither born in China nor India. EB-1 remains unchanged as there are still visa numbers available in that category. However, EB-3, much like EB-2, remains unavailable. It seems that for China and India EB-2 applicants, the situation has not improved, having actually deteriorated instead.

According to the Immigration and Nationality Act, the annual immigrant visa quota is 140,000 for employment-based immigration.  EB-1, EB-2 and EB-3 each receive 28.6% of the total number, while EB-4 and EB-5 each receives 7.1% separately. In other words, the   first and second preference each receives about 40,000 annual visa numbers. According to the regulations, immigrants in the second category may use any unused Employment first preference visas. Additionally, in all categories, the over-supply unused visas of some country can be used by the others countries in need. Finally, the country currently experiencing a long wait time may receive more unused quotas in the near future.

For the current 40,000 quota of EB-2 preference, each country receives 7%, with 3,000 available for China and India, 2,500 for the other countries, and 9,000 remaining for use by those countries in need, such as India and China. This is undoubtedly good news for those applicants born in China and India who are troubled by the quota issue. But the Article 203(e)(1) also regulates that the use of these unused places are subject to restrictions based on the priority date. As there are more EB-2 applicants born in India than in China, and the priority date of India is also earlier, it appears that Indian-born applicants could get more unused quotas than the China ones.

There maybe two reasons for this backward movement of the Indian-born EB-2 category. Firstly, too many applications have been submitted and too many visa numbers have been used by immigrants in this category. Therefore, the cut-off date moved backwards. Secondly, also known as the human factor, is the conspiracy. Fortunately, this significant regression may help Indian-born applicants receive more of the unused quota. In any case, the present EB-2 category Indian-born applicants have a longer wait time than those born in mainland China. So, If Dr. Gupta is born in India and Dr. Wang is born in mainland China, and both filed an NIW petition filed on the same with their petitions approved almost simulatenously, Dr. Wang would be able to file his I-485 earlier.

Regardless of whether the problem stems from too many applications or a generalized conspiracy, our firm will continue to pay attention to this issue and communicate with the USCIS and the U.S State Department in order to obtain the unused quota with the end goal of assisting our clients with their I-485 application needs.

Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past thirteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang ( for a free evaluation.

Zhang & Associates, PC.

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Tel:1-800-230-7040, 713-771-8433


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