Indian? Wait for Green Card just got longer

Insecurity grips thousands of Indian employees seeking Green Cards as visa numbers available for Indians has retrogressed for several years.

Facing an uncertain future, foreign tech workers, mainly Indians, have started a campaign to change the policy related to legal immigration.

"The cut-off dates for visa numbers have gone back to many years. Till it becomes current, I cannot apply to adjust my status. It could take many years. What could happen during this time is really worrying me," Mohan Kumar, who is on a H1-B visa said.

He had plans to buy a house, but not anymore. "Visa numbers may become current only after four or five years. Till then I am supposed to work with the same company. If the company downsizes or relocates the job, I am in trouble," he said.

"Some of these priority dates result in inordinate delays of seven or more years in adjudication of green cards. That delay will cause severe psychological and financial hardships to thousands of workers waiting for their Green Card process to be completed. This delay will be on top of the four or six years that many applicants have already experienced," Balaji Gandhi, representing a forum of tech workers (https://groups.yahoo.com/group/techworkers/) said.

"This is frustrating at best, because professionals of the highest quality, tax payers who have contributed to the US and households who brought family values to this country are potentially conditioned to live in a limbo state for years to come due to such shortage of Visa numbers," he said.

They have also started another website (www.isnamerica.org) to find a solution to this problem.

According to Ravi Kota, a leader of the group, almost 400,000 people are affected by the retrogression. Of this, a sizeable numbers is Indians and the estimates are at least 100,000.

The organisation is planning to call Congressmen and petition leaders of the government.

"How long will an employer wait for the magic green card? If a freshly-scrubbed Indian or Chinese college graduate has to sit on his or her heels for, to pick a number, 15 years, will any serious employer be that patient? Once this truth spreads throughout US campuses, and the true effect of visa retrogression sinks in, is there any question that the best and the brightest international students will accept jobs overseas because there are no available options for them to live and work in the United States?' attorney Gary Endelman, wrote.

Lack of Green cards could result in more employees going back to their countries. Also, it could result in more outsourcing of top jobs as qualified people may not be available here.

So, many people think that the Congress will step in to correct the anomalies.

India is the most affected, while China, Philippines and Mexico are also facing almost the same situation.

The employment based EB-3 category numbers were first retrogressed to 2002 at the beginning of this year. This is the category that allows Green Cards to professionals. Recently the numbers were altogether not available for some time.

According to the Visa Bulletin for October issued by the Department of State, the EB-3 category has now retrogressed to November 1, 1998.

It means that only people who applied before that date could file for a Green Card now. In order to file for adjustment of status to permanent residence or to complete a consular processing case to obtain the immigrant visa, that person's priority date must be before January 1, 1998.

Very few people will have cases filed earlier than this date.

The EB-1 category for people of extraordinary ability and EB-2 category for people with advanced degrees have also retrogressed.

In EB-1 category, the new cut off date is August 2002. For EB-2 it is November 1999.

The numbers in these categories have been current for many years.

People who have filed for Green Card or I-485 need not worry, attorneys noted. But it is a problem for others who have not yet reached that stage.

Green Card process begins with labour certification. Currently, one could get it within a few weeks time. The next step is filing I-140 petition with the US Citizenship and Immigration Service. Once it is approved, one can file for adjustment of status or I-485.

At that stage the applicant and his family are eligible to get the employment authorisation document and for the family social security numbers.

But without visa numbers available, one cannot file for I-485. So he will not get benefits like EAD and Social Security numbers.

Most Indian employees are H1-B visa holders. Usually, it is for six years but if the Green Card application process is pending for more than 365 days, he is entitled to get yearly extensions.

To make matters worse, working with an exploitative employer for several years may be necessary.

Even after all these, there is no guarantee that one will get the Green Card.

So, many might opt to return to India rather than face the uncertainty in the US, Kumar noted.  

The situation for workers from other countries is also not much better. Applicants from Mainland China have a cut-off date of May 1, 2000 in EB-3 and for Mexico it is January 1, 2001.

All other countries have a cut-off date of March 1, 2001.

In EB-2, China is the only other country with a cut-off date, May 1, 2000. For others the numbers are still available.

In EB-1 also, dates are applicable only for India and China. If India's cut-off date is August 2002, China's cut off date is January 2000.
The Visa Bulletin says that 'forward movement of the dates is likely to be limited at least for the remainder of the calendar year 2005.'

'Many categories have become oversubscribed for October, and cut-off dates established due to continued heavy demand for numbers,' the Visa Bulletin noted.

The visa numbers are calculated like this: Section 201 of the Immigration and Nationality Act sets an annual minimum family-sponsored preference limit of 226,000. The worldwide level for annual employment-based preference immigrants is at least 140,000. Section 202 prescribes that the per country limit for preference immigrants is set at 7 percent of the total annual family-sponsored and employment-based preference limits, which is 25,620.

The dependent area limit is set at 2 percent, or 7,320. These numbers are the same for large and small countries alike.

Once a country crosses these numbers, applicants have to wait till new numbers become available.

Recently the USCIS tried to eliminate backlogs aggressively. As a result most of the available visa numbers were used to provide Green Cards. In 2004, 70,116 Indians got Green Cards as against a total of 9,4612. In 2003 only 50,228 Indians got it.

Between 2004 and 2005, the backlogs were reduced more than 69 percent, from close to 4 million cases to only 1 million cases of entire immigration related applications.

Recently the Department of Labour has approved 344,000 applications for labour certification.

They will soon file for Green Cards and it could cause further delays.

So the new applicants might have to wait longer periods.

Since this phenomenon will affect the industries, it could result in fresh moves by the Congress. Already several Congressmen have demanded to scrap the Green Card lottery, which gives more than 50,000 Green cards to countries with less immigration.