On May 18 2018 by Karuna Chandani Simbeck

Hurry Up and Wait: Indian Foreign Nationals Facing Immigration Backlogs

The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.

Immigration paths for many foreign nationals are being methodically deterred by the current administration in Washington, but citizens from India seem to have a multitude of barriers to continue living and working in the U.S. after completing their college education.

By way of background, foreigners wanting to pursue an education in the U.S. are issued F-1 visas. Upon completion of studies, the F-1 student has limited options to pursue employment in the U.S. One of the most popular options available to a student on an F-1 visa, especially for those studying and working in the fields of science, technology, engineering or mathematics (STEM) is to use OPT (optional practical training) for temporary employment after graduating. This gives a student one year (up to three with extensions available to those in a STEM field) to work in the U.S. on a temporary basis.

Participation in the OPT program has grown exponentially in the last decade, but recent restrictions have been implemented by USCIS in limiting the experience to only inhouse and on the employer’s own worksite, which greatly limits opportunities for consulting in business or tech. While the current administration is actively working to restrict OPT, it stays in litigation in federal court.

Once a student’s OPT expires, their next step is often trying to obtain H-1B status. H1B status requires the foreign national’s employer to sponsor the petition. And even then, the foreign national only has about a 25% chance of being selected in the lottery which is capped at 65,000 for those who hold a bachelor’s degree, with an additional 20,000 available for those who have a U.S. master’s degree or higher.

If a foreign national is lucky enough to be selected in the lottery, recent processing changes implemented at the beginning of 2017 have made the adjudication process much more restrictive and the likelihood of approval much more difficult. These restrictive adjudications are targeted at occupations that attract many Indian nationals, including the IT field. A specialty occupation has been redefined to exclude many IT related jobs that may have more than one related degree. Many positions suffering this scrutiny are in the fields of data or analytics, often in emerging occupations where there are not specific degrees offered simply because the field of study is so new.

For any Indian national that currently holds a very coveted and difficult-to-obtain H-1B visa, he has no guarantee he will be able to remain in that job in the future. In the second half of 2017, USCIS eliminated prior guidance to adjudicators to give deference to petitions for an extension of an H-1B visa, meaning these petitions would get as much scrutiny as if petitioning for the first time, resulting in more RFEs which would have previously been unplanned for.

After all that, in order to plan for a permanent future in the U.S., the Indian foreign national’s employer would need to sponsor him/her for a green card through the PERM labor certification process. Then the foreign national’s application would be “wait-listed” to receive a green card through the EB-2 or EB-3 quota explained below. A conservative estimate to receive a green card for an Indian National in these categories is over 12 years. While waiting those 12 or more years, the foreign national cannot leave their employer, or even get promoted, because then they would have to start the process all over again.

The Visa Office in the Department of State (“DOS”) allocates green cards based on a series of eligibility requirements under the provisions of U.S. immigration law, specifically the Immigration and Nationality Act (INA). Employment-based (EB) immigration is divided into five preference categories, EB-1 to EB-5. A backlog means that there is a waitlist for green cards in the relevant preference category, so even where the government has approved the initial petition, the foreign national has to wait before he/she can apply for a greencard based on that approval.

About 140,000 EB green cards become available every year and when the visa numbers in one category is expected to be issued in one fiscal year, the DOS institutes a per-country restriction for that category. This means that no country can receive more than 7 percent of visas allocated in that entire category.

Since 2005, there has been a multi-year backlog for most foreign nationals applying under the EB-3 category, and for Chinese and Indian nationals applying under the EB-2 category. Given all the hurdles Indian nationals face through the OPT and the wait list in the EB-2 and EB-3 categories, two other options often pursued by Indian nationals are EB-1 (multi-national executive/manager or alien of extraordinary ability) and EB-5 (investment of $1,000,000 or $500,000.

With more Indian nationals relying on these two categories, it’s no surprise that a visa cutoff date of January 2012 was established for EB-1 India in April 2018, and a backlog is predicted for EB-5 India around June 2019. Possibly the worst effect is on the Indian national’s children, who if born outside the U.S. will be forced to leave the country when they are too old to be included in as derivatives of their parent’s applications. The rules regarding a child aging out are hyper-technical and will not be covered in this article.

The road to green cards is paved with challenges and delays; It could take decades for an Indian national to receive his/her green card. Most Indian nationals only start considering their long-term immigration options after they have graduated from school or when their OPT is about to expire. Given the quota backlogs, Indian nationals should start the process much earlier than they would have in the past, weigh all available options, and map out a plan for their future in the U.S.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the May 16, 2018 edition of the The Legal Intelligencer© 2018 ALM Media Properties, LLC. All rights reserved. 
Further duplication without permission is prohibited. ALMReprints.com  877-257-3382  reprints@alm.com.