September 21, 2005

The wait for a Green Card just got longer

Process May Take Up To Nine Years; Pros Can’t Change Jobs

Girish Kuber and Candice Zachariahs

   THOUSANDS of Indians waiting for a Green Card under the employment-based immigrant visa category may be in for a rude shock. The US Department of State’s latest visa bulletin has effectively increased the waiting period for certain categories of applicants to between seven and nine years. Worse still, professionals will not be able to change jobs during this period as their applications may become invalid.
   This is the first time in many years that visas issued under the employment-based immigration scheme have become unavailable. A number of Indian workers, especially techies, now fear that they may be forced to leave the US if they fall out of status — that is, their current visas expire — during this time. A drive to mobilise support and bring the situation to the notice of the Indian authorities has already begun.
   Practically all immigrant visa categories to the US have numerical quotas, much like the ceiling on non-immigrant work visas under the H-1B category. Immigrant visas are allocated until these quotas are exhausted. Once this happens, the Department of State (DOS) issues a ‘cut-off date’, which indicates that the dates for visa availability of that particular category have ‘retrogressed’ or been pushed back.
   The cut-off date is taken to be the ‘priority date’ of the first visa applicant whose application could not be entertained because the cap has been reached. Depending on the employment-based visa category (EB1, 2 or 3), priority dates are either the date that the employment-based petition is filed or the date that the application for labour certification (from the Labour department) is filed.
   EB1 is available to individuals of extraordinary ability, outstanding professors and researchers and multinational executives and managers. EB2 covers positions that require an advanced degree, while EB3 is for skilled workers and professionals.
   Visa numbers to the tune of 1,40,000 are available per year for employment-based immigration, of which each country has a 7% limit. So, India and China have about 10,000 visas each year under the scheme.
   The October ‘05 Visa Bulletin issued by the DOS shows that priority dates for India have been set at late ’02 for the EB1 category, late 1999 for EB2 category and early 1998 for EB3 category.
   This means that only cases with priority dates before those mentioned above can be filed and processed. Anyone with a priority date later than this will have to wait until new dates are announced and their priority dates become current.

Job change needs new filing of application

   ONLY cases with certain priority dates can be filed and processed. Anyone with a priority date later than this will have to wait until new dates are announced and their priority dates become current. Given these procedural delays, an applicant could effectively wait for up to seven years or more to be granted a Green Card.
   During this time, the applicants will have to remain in his or her ‘current employment’ if they wish to keep their place in line. “The moment you change employers from the one who has filed the Green Card application for you to another employer, your application is cancelled,” says Poorvi Chothani of LawQuest, correspondent to Cyrus D Mehta and Associates, a US immigration law firm. “In limited cases, you have portability if an adjustment of status application is pending for more than 180 days and the I-140 (employment-based Green Card petition) has been approved,” she adds. This, however, will not cover a majority of applicants. So, any change of job by the applicant will make his/her existing application null and void. Once this happens, he/she will have to start from scratch.
   In December ‘04, DOS announced retrogression under EB3 for workers from India, mainland China and the Philippines to January 1, ‘02. More recently, in its October bulletin, the DOS pushed these dates back further: January 1, 1998 for India; May 1, ‘00 for China and March 1, ‘01 for the Philippines.
   The bad news doesn’t stop there. The DOS has also announced cut-off dates for applicants under EB1 and EB2. In some cases, EB1 and EB2 applicants can file petitions themselves for a Green Card under the National Interest Waiver programme. However, those that require their employers to file a petition for them will find themselves in the same situation as EB3 applicants, tied to a job till their visas are approved.With the Katrina catastrophe is keeping the US authorities busy, it will take a while before the issue gets its due attention.

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