Eb-2 And Eb-3 May Become Current Under President’S Proposed Executive

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EB-2 and EB-3 May Become Current under President’s Proposed Executive Action 

By Rahul Reddy & Emily Neumann, Attorneys at Law 

Over a year ago, we wrote about a few provisions in the proposed Comprehensive Immigration Reform bill that specifically dealt with the Employment-Based green card backlogs. Of course, that bill stalled in the House of Representatives, but the ideas for reform may still be alive in the form of Executive Action by President Barack Obama. In recent weeks, White House officials have been talking with business leaders about what should be included in the President’s plan on immigration. A range of fixes have been discussed and signals indicate that action may be taken by the end of the summer or mid-September. 

Two expected provisions that would have an immediate positive effect on those waiting in the Employment-Based green card backlog are: 

1. Stop counting family members 
2. Recapture unused employment-based visas 

Under the current immigration system, a professional with his wife and two children currently draws down four green cards from a given employment-based immigration category. If family members are no longer counted, then only a single green card, one for the primary applicant, would count against the quota. This could effectively double or possibly even triple the number of workers who are able to obtain the green card. 

But, the provision with the highest potential impact would be the proposal to allow a recapture of all unused employment-based visas from 1992 to the present. During the 90’s and early 2000’s, many green cards went unused each year because of processing delays and the seven percent cap. This led to an estimated 400,000 green cards that went unused, which would now become available. 
Both of these provisions were included in the Senate’s Comprehensive Bill and neither of them would require any increase in the congressionally-mandated limits. That means that chances of these changes actually being included in any Executive Action are relatively high. 

These two provisions would translate into the possibility that priority dates may become current for all of EB2 and possibly even EB3. This impacts not just those that have already started the process and are currently waiting for the date to become current, but also those who have not yet begun. Even those starting the labor certification process today would likely be able to file the I-140 and I-485 concurrently immediately upon approval of the labor certification. If there is no wait for filing an adjustment of status, it opens up the possibility for some to avoid obtaining an H-1B visa. For example, an F-1 student with 12 months of OPT plus 17 months of STEM extension could conceivably obtain a labor certification, file the I-140 and I-485, and obtain an EAD before the OPT period has ended, thus eliminating the need for an H-1B. 

The practical impact of the proposed changes would greatly benefit citizens of one nation in particular – India. Currently, the number of employment-based green cards given to Indians each year is capped to an arbitrarily low amount, just seven percent of the 140,000 total. Despite a booming population of Indians with advanced degrees and experience in high tech fields such as computer science and engineering, the seven percent cap applies uniformly to each individual country. For Indians, the cap has created a backlog that can keep immigrants waiting 11 years for a green card under the current system. While 140,000 visas may seem like plenty, after applying the seven percent cap for any single country, Indians start with just 2,800 green cards each year for each of the EB-1, EB-2, and EB-3 categories, respectively. Though Indians are now allowed to exceed the seven percent cap when visas in EB-1 and EB-2 go unused by other countries, the additional visas are too few and do little to ease waiting times. With the two provisions above, the 11 year backlog could be eliminated for Indians. 

At this time we can only speculate about when these provisions would be implemented. Given the likelihood that the President may act by mid-September, it is possible that we may see the benefit beginning with the October 1st visa bulletin. That would be an excellent time to make the change as the 2015 Fiscal Year begins on October 1, 2014. That is when next year’s visas begin being distributed.

 

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