Green Card: Indians on green card queue in employment based 2 & 3 categories face huge backlog; will not be able to file applications in FY 2024

In what is very worrying news for thousands of Indians on permanent resident status (green card) queues in the US, in the employment-based 2 and 3 categories, the wait is getting longer. “The number of Indians in the queue for green cards is a staggering 1.1 million, with most in the EB-2 and EB-3 categories. Now, USCIS has also announced that there is sufficient inventory, and no more EB-2 or EB-3 I-485s from India will be accepted during fiscal year 2024 and beyond,” says Manjunath Gokare, founder and managing partner of GokareLaw Firm, a business immigration law firm based in Alpharetta, Georgia.The last step in the USgreen card application process is filing Form I-485 to adjust lawful immigration status for the foreign national. EB-2 and EB-3 are both employment-based categories. For EB-2, the position must require an advanced degree, or the international employee must possess exceptional ability in the sciences, arts, or business. To qualify for EB-3, the position must require at least a bachelor’s degree.

Gokare adds that unless the US Congress intervenes and finds a solution to this unsustainable imbalance between supply and demand, the green card lines for Indians will only get longer. “Clearly, the need of the hour is more visas for employment-based categories – the current 140,000 per year is woefully inadequate for an economy the size of America. As a country, we will lose talent to other places if we do not address this issue urgently,” Gokare says.
On its website, the US Citizenship and Immigration Services (USCIS), in the FAQs section, has recently explained that it has a significant number of employment-based adjustment of status applications in its inventory for EB-2 and EB-3 India and cannot accept additional filings this entire fiscal year 2024 (October 1, 2023, to September 30, 2024) and beyond.

Provision 203 of the US Immigration and Nationality Act requires that the State Department make reasonable estimates of demand for immigrant visas every quarter, and INA 245 requires that an immigrant visa be ‘immediately available’ when an I-485 is filed. “Given these statutory provisions, when the agencies have enough inventory, it is not reasonable to advance dates and accept new applications. Additionally, there are no unused family-based immigrant visa numbers that can roll over to employment-based categories, since the pandemic has ended, and family immigration demand has increased once again,” says Gokare.
Accordingly, EB-2 & EB-3 India filing dates may not advance meaningfully for “several fiscal years” and will likely move extremely slowly for the foreseeable future, he adds.
The recent USCIS FAQs: Q: What does the October 2023 visa bulletin reveal about fiscal 2024 and future fiscal years? A: As the agencies rebuild normal operations following the COVID-19 pandemic, fewer unused family-based immigrant visa numbers are carrying over to increase the number of available employment-based immigrant visas in FY 2024. In the years ahead, once there are no more unused family-based numbers, the annual number of available employment-based immigrant visas should return to 140,000. This limit, established by Congress more than three decades ago, is insufficient to meet the demand for employment-based immigrant visas in every category. Barring a change to the statute or an unexpected reduction in non-citizens seeking employment-based immigrant visas, non-citizens from all countries can expect to see longer waits for immigrant visas.
Within EB-1, the category remains ‘current’ for non-citizens chargeable to countries other than India and China, and the final action dates have advanced for both India and China compared to the September 2023 visa bulletin. Within EB-2, demand for visas from non-citizens chargeable to countries other than India and China is so high that for the first time ever, the category is not ‘current’ for such applicants at the beginning of a fiscal year. The same is true in EB-3, where demand from countries other than India and China is very high, and so the category will not be ‘current’ for such applicants at the beginning of the fiscal year for the first time since FY 2018. The final action dates for non-citizens chargeable to India and China in this category have advanced, reflecting the available visas for FY 2023.
Q: With increasingly long waits for employment-based immigrant visas for noncitizens from every country and in most categories, what has USCIS done to help those affected?
A: We are committed to working with Congress to find durable solutions to address the imbalance between the high demand for immigrant visas and the decades-old annual statutory limits. We continue to emphasize that this imbalance needs to be addressed and that only Congress can alleviate the statutory constraint on immigrant visa numbers. At the same time, we continue to pursue policy and regulatory changes to bring greater certainty, stability, and protection for employer-sponsored non-citizens (as well as special immigrants and immigrant investors) in the United States.