Changing Cut Off Dates Leave India EB-3 Applicants in an Immigration Limbo

Annual limits on immigrant visa numbers, mixed with processing delays and wasted numbers, imply even longer waits for folks to turn out to be U.S. everlasting residents. In November, the “lower off” date for visa eligibility retrogressed (moved backward in time) for folks born in India who’re within the employment-based (EB) third choice class for expert staff, professionals, and “different staff.” The Division of State (DOS) doesn’t anticipate any ahead motion for the India EB-3 class for the remainder of Fiscal Yr (FY) 2022.

Congress established choice classes with numerical limits for varied varieties of immigrants. Instant family members aren’t topic to numerical limits and aren’t a part of the choice classes. Instant family members embody the spouses and single kids underneath 21 years outdated of U.S. residents and the dad and mom of U.S. residents who’re at the least 21.

By legislation, immigrant visa numbers are allotted per fiscal yr with a minimal of 226,000 within the family-based choice classes, a minimal of 140,000 to EB choice classes, and as much as 55,000 to range visas. The legislation additionally imposes a per nation numerical restrict every fiscal yr: the variety of immigrants from a single nation can’t be larger than 7% of the overall quantity of people that immigrated to the US that yr.

DOS points a Visa Bulletin month-to-month that gives immigrant visa availability primarily based on data from each DOS and U.S. Citizenship and Immigration Providers (USCIS). When DOS lists a date within the Visa Bulletin, that turns into the “lower off” date. An individual with a precedence date sooner than the date listed within the “Last Motion Dates” chart is now eligible to have an immigrant visa quantity issued if their utility is accredited throughout that month.

The “precedence date” system determines when an applicant can start the final step in changing into a everlasting resident. An immigrant’s precedence date is dependent upon the choice class that applies to them, however the precedence date additionally needs to be assigned.

For an EB-preference class immigrant, the precedence date isn’t assigned—doesn’t belong to the immigrant—till USCIS approves the immigrant petition relevant to the class (Types I-140, I-360, or I-526). Whereas the immigrant petition is filed on behalf of the individual searching for to immigrate primarily based on employment, the precedence date may also be utilized to a partner or youngster eligible to immigrate with or comply with to hitch the individual.

The Visa Bulletin consists of two charts: “Last Acton Dates” and “Dates for Submitting.” USCIS describes the previous as “dates when visas might lastly be issued” and the latter as “earliest dates when candidates could possibly apply.”

Every month, USCIS posts which chart everlasting resident candidates —which is most EB-preference candidates—should use to file their functions with the company. Many India EB-3 principal candidates are working in the US in H-1B standing and apply with USCIS for inexperienced playing cards somewhat than consular course of. However the lengthy watch for immigrant visa numbers locations their kids prone to “ageing out” of each their H-4 standing and eligibility for a inexperienced card.

On the finish of the fiscal yr, unused family-based immigrant visa numbers “fall throughout” to the EB classes to be used within the subsequent yr. In FY 2021, the annual restrict for EB immigrant visas grew to become 226,000 as a result of 126,000 FB visas went unused in FY 2020 primarily resulting from COVID-19 shutting down or limiting operations at U.S. consular posts overseas. Most family-based immigrants submit visa functions that are adjudicated by the U.S. consular posts whereas most employment-based immigrants apply to USCIS to regulate their standing to everlasting resident in the US.

Whereas these further EB visa numbers meant that extra folks might have acquired inexperienced playing cards than underneath the a lot decrease 140,000 restrict, 62,000 visa numbers weren’t utilized by September 30, 2021. Beneath the present allocation system, these 62,000 visa numbers are gone and can’t be utilized in 2022.

In fiscal yr 2022, the annual restrict for EB immigrant visas grew to become roughly 280,000—double the conventional restrict—as DOS decided that about 140,000 family-based visas went unused in FY 2021. In October 2021, the primary month of FY 2022, the ultimate motion “lower off” date for India EB-3 was January 1, 2014, which was additionally the “lower off” date in September 2021, the final month of FY 2020. Nonetheless, in November 2021, the ultimate motion “lower off” date for India EB-3 grew to become January 15, 2012. Solely these in India EB-3 with a precedence date of January 14, 2012 or earlier can now full the inexperienced card course of with USCIS (or obtain an immigrant visa overseas from a consular put up).

In keeping with DOS, the company doesn’t anticipate any enchancment via September 30, 2022 as a result of there have been extra India EB-3 candidates already ready earlier than FY 2022 started. For FY 2022, the EB-3 immigrant visa restrict is 80,080. However with the per nation restrict, there are solely 5,065 visas allotted to India EB-3. It’s potential that if there’s much less demand for EB-3 visa numbers allotted for different nations, DOS will be capable of “spill over” extra visa numbers—however throughout the complete restrict for the EB-3 class.

The present estimate is 13,870 out there EB-3 visa numbers, that are utilized by precedence date (not topic to the per nation cap). Since folks born in India have the earliest precedence dates, any further visa numbers would primarily profit them. But, DOS additionally estimated in early September that the minimal demand for India EB-3 visas in October 2021 (primarily based on last motion dates) was 44,751. At what level will these staff resolve that they can’t wait any longer?

There are options that may enhance the variety of immigrant visas out there with out rising the present annual limits.

One can be to alter the legislation to permit any numbers unused in a fiscal yr to spill over to the following and recapture numbers misplaced in previous years. One other can be for the businesses to alter their present interpretation of the legislation, with correct discover, in order that separate visa numbers are not required for the partner and youngsters. This may liberate visa numbers for people, somewhat than having numbers go to members of the family individually.

FILED UNDER: EB-3, U.S. State Division, USCIS