The EB-2 and EB-3 visa categories are experiencing unprecedented backlogs, with wait times stretching far longer than even the EB-5 Immigrant Investor Program.
U.S. government data suggests that recent applicants from India, the country with the highest demand by far, may see wait times stretch anywhere from 20 years to a shocking 128 years before a visa becomes available.
There are a number of factors influencing these disastrous wait times for EB-2 and EB-3 approval. Worldwide demand has increased significantly in recent years, with more than 15,000 applications per month. Yet the supply of visas is fixed at 40,000 per year for both the EB-2 and EB-3 visas categories, a number that includes all family members who are eligible to receive visas, not just the principal applicant.
In this article, we will examine the EB-2 and EB-3 visa processes and use government data to explore the reasons behind the vastly inflated wait times facing new and approved applicants alike. We will also explore other options for EB-2 and EB-3 applicants awaiting approval.
Here’s What We’re Going to Cover:
What Are EB-2 and EB-3 Visas?
EB-2 and EB-3 visas are employment-based (EB) visa categories granting visa holders permanent residence in the United States. The programs are administered by United States Citizenship and Immigration Services (USCIS).
EB-2 Visa
An EB-2 visa is for foreign workers with an advanced degree or exceptional ability. To qualify based on an advanced degree, a master’s and/or doctorate degree, or foreign equivalent, is required. To qualify based on exceptional ability, a foreign national must have at least three of the following:
- Academic degree or diploma from a university or college in their area of expertise.
- A license or certification to practice their profession.
- Significant recognition for their achievements in their field.
- Membership in a relevant professional association.
- Evidence of salary or remuneration for services demonstrating exceptional ability.
- Letters from current and former employers documenting 10 years or more of experience.
EB-3 Visa
An EB-3 visa is for skilled and professional foreign workers with jobs requiring at least a U.S. bachelor’s degree and/or foreign equivalent, or at least 2 years of training. They must have two years of experience or more working in their field.
Both the EB-2 and EB-3 visas allow the applicant’s spouse and unmarried children under the age of 21 to immigrate with them to the United States. Other family members may apply for family-based immigration later, especially if the immigrant further applies for U.S. citizenship.
EB-2 and EB-3 Visa Processes
Both the EB-2 and EB-3 visa categories have a similar process. Both visas require a full-time, permanent job offer from an American employer. Prior labor certification from the U.S. Department of Labor (not USCIS) is required.
After making an official job offer to a foreign worker, the U.S. employer must obtain a certified ETA Form 9089, Application for Permanent Employment Certification (or, PERM), from the U.S. Department of Labor. This form certifies that no U.S. workers were available or qualified to fill the position, and that the immigrant’s employment will not adversely affect wages for U.S. workers.
ETA Form 9089 can take up to six months to process to receive labor certification from the Department of Labor. Labor certification only lasts for 180 days.
The U.S. employer must next file Form I-140, Petition for Alien Worker, on behalf of the immigrant. This is an immigration petition for a noncitizen worker to become a lawful permanent resident of the United States, based on employment. The employer must demonstrate an ability to continue to pay the foreign national’s wages on a full-time, permanent basis.
Form I-140 has a filing fee of $700. It must be submitted to USCIS before the 180-day labor certification expires. This form can also take up to six months to process.
Doomsday Wait Times
If ETA Form 9089 and Form I-140 each take approximately six months to adjudicate, why are wait times for EB-2 and EB-3 visas so incredibly long?
Congressional Visa Limits
Congress set a worldwide limit of 140,000 employment-based visas per year over 30 years ago and has not updated this quota to keep pace with either increased population growth or demand.
Only 40,000 of the total employment-based visas are given to the EB-2 visa program each year. Only 40,000 EB-3 visas are available each year, as well. This number includes not just the visa applicant, but any eligible family members as well, such as a spouse or unmarried children under 21. Further, no country may garner more than 7% (or 2,800) of the 40,000 available visas in either category.
In 2022, the Department of Labor received more than 15,000 PERM labor certification applications every single month, with more than 22,000 in March 2023 alone.
However, even if applicants are approved for both labor certification (ETA Form 9089) and employment-based immigration (Form I-140), they must still wait until one of only 2,800 green cards per year becomes available in their category in their country.
Estimated Wait Times for EB-2 and EB-3 Visas
Every month, the U.S. Department of State publishes a new visa bulletin, with updates to cut-off dates for processing and other pertinent information. Cut-off dates change frequently for all visa categories.
Immigration visa applicants may only apply for adjustment of status to enter the United States as permanent residents if their priority date is earlier than the cut-off date listed in the State Department’s monthly visa bulletin.
A priority date is the date that USCIS receives an EB-2 or EB-3 petitioner’s Form I-140. Foreign nationals will receive a notice of receipt (I-797) in the mail within a few weeks of submission.
According to the November 2023 visa bulletin from the U.S. Department of State, worldwide demand both the EB-2 and EB-3 visa categories have increased so much that, for the first time since FY 2018, no countries are listed as ‘current’ for either visa.
As of November 2023, the cut-off date for EB-2 visas is July 15th, 2022, for all countries except India and China. The cut-off date for China is October 1st, 2019. The cut-off date for EB-3 visas is December 1st, 2021 for all countries except China and India. China’s cut-off date is January 1st, 2020.
Any EB-2 or EB-3 applicant with a filing receipt earlier than those cut-off dates is eligible to receive a U.S. green card. Except for India.
Severe Visa Retrogression for India
The visa backlog, also known as visa retrogression, is far worse for Indian nationals than other countries.
“The number of Indians in queue for green cards is at a staggering 1.1 million; with most in EB-2 and EB-3 categories,” according to Manjunath Gokare, founder and partner at Gokare Law Firm, which specializes in immigration.
As of March 2023, there are 395,958 approved I-140 petitions awaiting an available EB-2 visa. 90 percent of those EB-2 visa applications, or 358,078, are from India alone. There are 129,754 approved petitions awaiting an available EB-3 visa, with 89 percent of those applications coming from India.
As of November 2023, the cut-off date for Indian EB-2 visas is for petition filed prior to January 1st, 2012. The Indian cut-off date for EB-3 visas is May 1st, 2012. This means that only those applicants who filed their I-140 petitions more than ten years ago may receive their green cards.
With nearly 400,000 approved Indian nationals awaiting one of 2,800 EB-2 visas per year, simple math tells us that recent applicants may have to wait up to a staggering 128 years for an available EB-2 visa, or 41 years for an EB-3 visa.
But with 15,000 applications each month in recent years, this backlog is only expected to grow.
How Do EB-5 Visas Compare?
The EB-5 Immigrant Investor Program is one of the most reliable ways to receive employment-based permanent resident status in the United States.
No employer visa sponsor is required. This means that EB-5 applicants can live, work, and study wherever they want in the United States, and change jobs without losing resident status.
EB-5 applicants receive green cards in exchange for investing a minimum of $800,000 in a qualifying U.S. new commercial enterprise that creates 10 or more full-time permanent jobs for U.S. workers lasting at least two years.
In recent years, wait times have increased due to variety of factors, such as a pandemic-induced consular shutdown. However, wait times for EB-5 visas are often just 5-8 years for an entire nuclear family to be approved for U.S. green cards.
Approval time is longer for high-demand countries. However, unused EB-5 visas from low-demand countries are redistributed the following year to higher-demand countries such as India or China.
EB-2 and EB-3 visa applicants can even change to an EB-5 visa application with a few extra steps.
An EB-5 visa is far more expensive than the EB-2 and EB-3 visas. But currently, the wait times are lower, especially for Indian nationals. For foreign nationals with the capital liquidity, it is a great option to explore, especially since an EB-5 investment can grant ongoing returns if the business is successful.
What Can Congress Do About the Visa Backlog?
The EB-2 and EB-3 visa backlogs are discouraging highly skilled immigrants from even attempting to enter the United States. Such disastrous wait times are extremely harmful in the long-run for the health of the U.S. economy.
To combat the backlog, Congress could increase the number of employment-based immigrant visas available each year. It could also get rid of visa quotas per country, as it has in other visa categories.
Congress could also allocate more funds to USCIS or the Department of Labor, allowing them to hire more petition adjudicators. There are also internal ways to streamline both the PERM labor certification process and all USCIS operations.
For more information on employment-based visas, including the EB-5 investor visa, schedule a free consultation with EB5AN today or email us at info@EB5AN.com.
