The US Senate is considering legislation of two new bills proposing to remove the per country caps for certain employment-based green cards. This Bill (HR 1044) has been passed by the House of Representatives. HR 1044 increases the per-country cap on the existing rule of immigrant visa distribution while eliminating the 7 per cent per-country cap for employment-based immigrant visas.
If the bill is passed immigration experts believe it will have a negative impact on Indian nationals waiting for their EB-2 or EB-3 green cards. The bill also includes a “no harm provision,” which means that every person who is currently in line for a green card is guaranteed a better wait time.
The USCIS data indicates that on October 1, 2019, EB-2 green cards will be backlogged for 550,869 individuals, of whom 93 per cent are Indian nationals. Currently, the minimum EB-2 waiting time for Indians is about 10.5 years, due to the existing 7 per cent per country cap.
This was a disadvantage for countries like India and China anyway as these countries have much higher number of applicants whereas smaller countries may not even use up their entire prescribed 7 per cent.
“The Bill does not increase the number of green cards that can be issued each year. As a result any change in the visa allocation process will mean that someone has to wait longer than anticipated because of the shift in allocation. This is not an ideal or sustainable solution,” said Poorvi Chothani, Managing Partner, LawQuest. Despite the transition and Hold Harmless provisions the Chinese, who are already in line will consume most of the visas so that the rest of the world will then backlog many years, same as EB-2 and EB-3 categories, added Chothani.
The US issues only 10,000 EB-5 visas each year with, only 7 per cent earmarked for each country except for certain situations. The current wait time for Indian nationals is estimated at 7.8 years and at present there are about 80,000 Chinese nationals waiting for an EB-5 green card.
She added that if this Bill became a law, despite the transition and Hold Harmless provisions, there still will be 166,820 Indian nationals waiting for an EB-2 visa on September 2029. As of today, these 166,820 people are already waiting in queue. In fact, under the new law, some of them might have to wait a few years beyond 2033. Hence it is evident that the new legislation will not effectively solve the backlogs – but in several cases will make the wait time much longer.
“The immediate effect of this for EB-2 beneficiaries (most of them Indians) will be that the visa queue will move very quickly, but for a significant number of Indian nationals the wait time will be beyond 2030, which is when they are likely to get their green cards under the current system,” said Chothani.
In simple terms, the Bill would establish transition rules for employment-based visa dating from financial year 2020-2022 and reserve a percentage of EB-2, EB-3 and EB-5 visas for individuals who do not belong to the India and China which have the highest number of recipients of such visas. It provisions 15 per cent reserved employment based green cards for rest of the countries and 85 per cent to be allocated to major countries like India, China for fiscal year 2020. This will increase to 90 per cent for the next two years and then the reservation will be removed.