The State Department released the January 2013 Visa Bulletin last week. Among the items of interest was the disappointing news that the visa cut-off date for the EB-2 category for India remains September 1, 2004, for the fourth straight month since the new fiscal year began in October. This means that cases with a priority date on or before the cut-off date can be processed, all other applications must wait for an available visa. The visa cut-off date for the EB-3 category for India again showed a slight movement of one week to November 8, 2002, from the previous month’s cut-off date of November 1, 2002. Since the beginning of the fiscal year, that’s a movement of a whole month for Indian born applicants in the EB-3 category.

(For those still confused about the visa cut-off dates: the foreign employee’s priority date must be prior to the visa cut-off date published in the monthly Visa Bulletin for the employee to be able to file an application to adjust status, the final step in the process for permanent residence. If the application to adjust status has already been filed, it cannot be approved until the posted cut-off date reaches the individual’s priority date. The priority date is set by the filing date of the PERM application or the immigrant visa petition, whichever comes first.)

The problem for Indian born applicants is the per country limitation. The law limits each country to 7% of the total applicants if a classification is oversubscribed, meaning that there are more applicants in line than the law allows in any one year. Congress set the limit for employment-based visas at 140,000 in 1990, and has not updated the law since then. Because this limit includes not only the employees being sponsored, but each of their family members, the sponsored immigrant requires an average of 2.3 visas, further reducing the availability of visas. The allocation for the EB-2 and EB-3 categories are 40,040 each, and because both have been oversubscribed, the per country limitation has been effective since April 2000. This means that there are 2,803 (7% of 40,040) visas available for Indian born applicants in each of the two employment categories.

Each quarter, USCIS publishes the statistics to announce the inventory of pending cases for those who have already submitted an application to adjust status. Applications remain pending because the priority date was current at the time the application was submitted but the visa cut-off date has since retrogressed. Most notably, the July 2007 Visa Bulletin reflected that all dates were current, and several hundred thousand applications were filed that month. The July Bulletin reflected an artificial determination for complicated political reasons, but the bottom line was that it permitted thousands of applicants to file with a date that was current only that month and then immediately retrogressed. As a result, the applications have been stymied while waiting for the cut-off dates to move forward. As of October 2012, there were approximately 90,000 applications pending before the USCIS for individuals born in India. Of these applications, 42,000 are EB-2 classifications, with priority dates between 2002 and May 2010, and 47,000 applicants are EB-3 classifications, with priority dates between 2002 and July 2007.

The conventional wisdom is that the EB-2 classification, which requires more experience or greater academic credentials than the EB-3 classification, is a faster route to permanent resident status. Because the EB-2 category was more "exclusive" and more importantly, benefited from the availability of unused visas in other categories, the priority dates for the EB-2 category traditionally advanced more rapidly. Accordingly, the EB-2 category represented a much shorter wait for the green card than the EB-3 category. However, thousands of individuals whose applications have now been pending for over 5 years or more are now reaching the limits of their patience, and they are working feverishly to convert their EB-3 applications to qualify in the EB-2 classification. There are over 12,000 EB-3 applicants with priority dates in 2004 and earlier. For every 2,803 of these applicants who successfully move to the EB-2 category, the EB-2 post 2004 cases are delayed one full year. Similarly, fewer applicants will remain in the EB-3 category, which causes the priority date for the lower classification to move more rapidly. We anticipate that eventually the applications in both categories will reach an equilibrium and the cut off dates for both categories will move forward together.

Exactly how and when this will occur cannot be determined, but it appears obvious that the categories will synchronize at some point in the foreseeable future. To determine the actual period before any individual’s application can be approved, the number of applications ahead of the priority date must be divided by 2803. However, we don’t have a complete picture of the number of applications in line, as the USCIS and Department of State do not publish all of the necessary statistics. We do know that there are at least 120,000 Indian born applicants awaiting a current priority date in the two categories. Since a maximum of 5606 applications can be approved in any one fiscal year (2803 in each category), the wait will be measured in years for most, and for some, in decades.

All of these statistics merely help to explain the wait, but do not begin to describe the toll this wait is taking on the applicants, their families and their employers. The slow progress of the cut-off dates reported each month in the Visa Bulletin is agony for those who have waited 10 years already, and others who may be forced to wait for another 20 years or longer. Employers are left to assuage this anxiety or lose valuable employees. Many are asked to expend additional fees for a new petition to move to the EB-2 category, a tactic that may yet prove illusive. In the interim, there is the continuing cost and anxiety surrounding the extensions of non-immigrant status, problems renewing driver’s licenses, additional complications with international travel, and families left in limbo while waiting for the completion of the process. The wild card is whether Congress will address this dysfunctional system when it considers comprehensive immigration reform, as has been promised by the politicians and pundits alike following President Obama’s reelection. We can only hope that there will be a legislative fix.