The EB-2 and EB-3 visa categories are facing significant backlogs for Green Cards, particularly impacting Indian nationals. Wait times for these categories are currently longer than that of any other U.S. employment-based immigrant visa, including the popular EB-5 visa.
For Indian nationals, the backlog impact is especially pronounced, with wait times stretching up to a staggering 134 years for a Green Card to become available—an estimation based on the United States Citizenship and Immigration Services (USCIS) data.
Many factors contribute to the extended wait times for EB-2 and EB-3 visa approvals, but heightened global demand remains the foremost reason.
In fact, global demand for EB-2 and EB-3 visas has surged to over four times the number of visas available on an annual basis; an estimate of over 180,000 applications against 40,000 available visas. To make matters worse, the 40,000 quota includes not only the principal applicant but also all dependents and/or family members.
In this article, we will explore the processes and data behind these extensive delays facing new applicants and those with approved petitions. Additionally, we will look into alternative avenues for Indian citizens awaiting approval for EB-2 and EB-3 visas.
EB-2 and EB-3 visas are two categories among the United States’ employment-based immigrant visas, which comprise five different options, with several sub-categories. These are:
EB-1: Priority Workers and Persons of Extraordinary Ability
EB-2: Professionals Holding Advanced Degrees and Persons of Exceptional Ability
EB-3: Skilled Workers, Professionals, and Other Workers
EB-4: Certain Special Immigrants
EB-5: Employment Creation / Immigrant Investors
Each year, between October 1 and September 30, around 140,000 employment-based immigrant visas become accessible under U.S. immigration law, allowing successful applicants to obtain permanent residency in the United States.
In the case of all employment-based immigrant visas, albeit with some specific rules and requirements, the principal applicant’s spouse and unmarried children under the age of 21 can also immigrate to the United States.
What Is an EB-2 Visa?
Employment Second Preference (EB-2) visas are for individuals with an advanced degree (master’s and/or doctorate degree) or its foreign equivalent, those with “exceptional ability” in their fields, or those whose employment benefits the U.S. national interest. To show exceptional ability in sciences, arts, or business, foreign nationals must possess at least three of the following qualifications:
Official academic documents, like degrees or certificates, from a college or similar institution in their field
Letters from past or current employers, showing at least ten years of full-time work experience in their occupation
Professional licenses or certifications relevant to their profession
Proof of receiving a salary or other payment for their services, indicating exceptional ability
Membership in professional associations
Recognition from peers, government entities, or professional organizations for their achievements in their field
What Is An EB-3 Visa?
Employment Third Preference (EB-3) visas are for skilled workers, professionals, or other workers. Foreign citizens applying for this visa across the three subcategories must possess the following qualifications, respectively:
Two years of job experience, education, or training
U.S. bachelor’s degree and/or foreign equivalent
Ability to perform unskilled labor that is not of a temporary nature
An Overview of EB-2 and EB-3 Visa Processes
EB-2 and EB-3 visas both require a labor certification and a permanent, full-time job offer from a U.S.-based employer.
Once an official job offer is extended to a foreign worker, the U.S. employer is required to obtain a certified ETA Form 9089, Application for Permanent Employment Certification (PERM), from the U.S. Department of Labor (not from USCIS). This form confirms that no qualified U.S. workers were available for the position and ensures that the employment of the immigrant will not negatively impact the wages of U.S. workers.
ETA Form 9089 can take up to six months to process, and the labor certification only lasts for 180 days.
Next, the U.S. employer is required to file Form I-140, Petition for Alien Worker, on behalf of the immigrant. This petition seeks permanent residency in the United States for noncitizen workers based on their employment. The employer must demonstrate the capability to sustain the foreign national’s full-time, permanent wages.
Form I-140 has a filing fee of $700, although USCIS is expected to impose a 2% increase to $715 on April 1, 2024. The form must be filed before the expiry of the 180-day labor certification. Form I-140 can also take up to six months to process, although it is currently averaging longer than one year.
Current EB-2 and EB-3 Wait Times for Indian Nationals
Each month, the U.S. Department of State issues a visa bulletin, which includes updates to cut-off dates for visa processing. These are subject to frequent changes across various visa categories.
Immigrant visa petitioners can only file for adjustment of status if their priority date is earlier than the cut-off date listed in the visa bulletin.
A priority date marks the day that USCIS receives an EB-2 or EB-3 petitioner’s Form I-140. Within a few weeks of submission, foreign nationals receive a notice of receipt (I-797) by mail.
According to the March 2024 visa bulletin, due to high global demand, no countries are in “current” status in the EB-2 and EB-3 visa categories. When compared to the February 2024 bulletin, the EB-2 cut-off date for India remains at May 15, 2012, while the EB-3 cut-off date remains at August 1, 2012.
As for Final Action Dates for Indian EB-2 and EB-3 applicants, they remain at March 1, 2012, and July 1, 2012, respectively. Additionally, for March 2024, USCIS announced that it will accept Form I-485s based on the Final Action Dates chart.
As the dates on these visa bulletin charts indicate, Indian EB-2 and EB-3 applicants currently face significant visa retrogression.
According to March 2023 data, there were 395,958 approved I-140 petitions awaiting an available EB-2 visa, with 90 percent of these applications, totaling 358,078, originating solely from India. Similarly, there were 129,754 approved petitions awaiting an available EB-3 visa, with 89 percent of these applications originating from India.
Based on the March 2024 visa bulletin data, the minimum wait time to file for adjustment of status through EB-2 for an Indian national is around 12 years, with some estimations reaching over 100 years. According to a recent analysis by the Cato Institute, more than 400,000 Indian workers residing in the U.S. and seeking an employment-based green card are confronted with a wait time of 134 years.
The majority of backlogged cases fall under the EB-2 category, while 19 percent are in the EB-3 category, which, in turn, involves a wait time of about 40 years.
Comparing EB-2, EB-3, and EB-5 Visas for Indian Applicants
Another category in the employment-based immigrant U.S. visas, the EB-5 Immigrant Investor Program may be a viable alternative for Indian citizens seeking a green card.
In the case of the EB-5 visa, there is no sponsorship requirement. Successful EB-5 investors can reside and work anywhere in the United States, irrespective of which state they invest in as part of the program. They can also switch to different jobs without compromising their resident status, and apply for adjustment of status at the same time as their initial EB-5 application, known as concurrent filing.
Like EB-2 and EB-3 visas, the EB-5 visa also permits the family (spouse and children under 21) of the applicant to obtain green cards and live, work, and study in the U.S.
Foreign nationals with sufficient capital resources may find it beneficial to consider this option, particularly since EB-5 investors can enjoy continuous returns from their businesses, or receive their capital back in the case of an investment in a successful EB-5 project.
Indian nationals who are already in the U.S. can benefit from investing in the new EB-5 set-aside categories, which are “current” on the State Department’s visa bulletins, thus offering unprecedented immigration benefits.
