Backlog for EB1, EB2 & EB3
Following the release by the USCIS of their backlog statistics in September, many prospective immigrants began to reevaluate the idea of upgrading to higher preference classifications. Central to any such decision is the answer to the question "How long do I have to wait if I remain in my present classification?" The purpose of this article is to help applicants try and determine just how long that wait will be.
The answer to that question, like most things, is complex. It depends on several factors that are unknown at this time. These include:
· There is an unknown number of pending AOS cases that have not yet been classified or reviewed.
· In the case of EB2, there is an unknown number of EB3 applicants who are actively in the process of upgrading to EB2.
· There are additional cases in the pipeline, not accounted for by the available backlog information.
While it is not possible to predict with accuracy precisely how long it will be before specific applicants will receive immigrant visas, it is possible to get some idea of the minimum waiting time. That is, it is possible to determine how long it will be, at an absolute minimum, before a visa number becomes available. The actual waiting time will be longer than the minimum time, but this will at least give people a rough idea of just what they are looking at.
Let's first look at the employment based second preference category (EB2). For purposes of this discussion, we will look at the visa waiting times for China, India, and Worldwide.
The "Worldwide" chargeability area is "current" – meaning that there are more visas available under the quota that there are qualified applicants. This means that anyone chargeable to the Worldwide EB2 category has immediate access to a visa. This condition will remain so for at least the next several years.
Because there are unused visa numbers within the EB2 Worldwide allocation, the remaining numbers may be used by people who are otherwise eligible, but for the single state limit (i.e., citizens of China and India). These applicants may use the leftover EB2 numbers as though they were chargeable to the Worldwide category, as long as visas remain available. That is, those with the oldest priority dates, irrespective of country of birth, are at the head of the line for EB2 visas.
Let's take a look at the backlog information for EB2 visas shown on the CIS website, arranged, by priority dates, area of charge and year:
2001 and earlier
The Worldwide allocation for EB2 is roughly 40,000 visas annually, plus all unused EB1 numbers. For fiscal year 2008, a total of 35,590 employment-based first preference visas were issued. Due to the failure of the CIS to adjudicate enough family based adjustment of status cases, about 25,000 visas from that quota fell over into the employment based quota and a total of 70,135 EB2 visas were issued. For fiscal year 2009, there were considerably fewer family based visas available for use by the EB categories. For FY 2010, the State Department estimates that there will be only about 5,000 such additional visas available. For our purposes, we can assume that EB1 will have about 5,000 leftover visas and another 5,000 will become available from the family based quota. This means that the EB2 visa availability will be approximately 50,000 for this fiscal year.
If we assume that all of the demand shown on the CIS website remains, and that there is no additional demand, the total of pre-approved EB2 cases pending before the CIS with priority dates earlier than 2007 is almost 52,000. In reality, this demand represents about two-thirds of the actual demand, so the likelihood is that the EB2 cutoff date will not move beyond May, 2006 by the end of fiscal year 2010 (September 30, 2010).
If the EB2 cutoff date does reach May, 2006 by the end of FY 2010, then it would likely reach the end of calendar year 2008 (and probably go into early 2009) by the end of fiscal year 2011.
A word of warning is in order at this point. Our office alone has received about 150 inquiries in the last couple of months by people with established EB3 priority dates who wish to file new PERM applications so that they may qualify for EB2. When they do, they will take their EB3 priority dates with them. This means that they will enter the EB2 waiting list at a point much earlier in time.
Our office is but one of many receiving these inquiries. I have to believe that somewhere between 7,500 and 12,000 people are actively in the process of upgrading their preference classifications right now. As the months progress, this number will increase. All of these people will move onto the EB2 waiting list with older priority dates, in some cases as early as 2002. When this happens, it will push those with more recent priority dates back in line, increasing the time they must wait for visa availability.
Having examined EB2, let's now take a look at the more complex problem of EB3 backlogs. Again, we will use the backlog information for EB3 visas shown on the CIS website, arranged, by priority dates, area of charge and year:
2001 and earlier
Availability is a bit more complex in this situation. Recall that the third employment based preference category (EB3) is allocated roughly 40,000 visas annually. These visas are issued on the basis of those with the oldest priority dates receiving visas first. There is, however, a single state limit that prohibits no more than seven (7%) of the total number of visas from being issues to persons born in a single country. This means that no more than 9,800 visas may be issued to persons born in any single country. Note that it is country of birth that determines chargeability, not country of citizenship.
This 9,800 limit applies to all employment based applicants from a single country, including first, second, third, fourth, and fifth preferences. When a country is subject to the single state limit, the 9,800 maximum is divided the same way that the five preferences are divided within the overall EB quota. That is, each of the first three preferences receive 28.8% of the total. For EB3 purposes, this means that there is a maxium allocation of about 2,822 visas annually for each country subject to the single state limit, provided there are that many applicants with sufficiently early priority dates.
Let's take a quick look at how this gets applied to the quota. We start with an overall allocation of 40,000 visas. The single state limits are not guarantees. They are maximum limits imposed on people born in those countries, within the overall limit. Within the 40,000 annual allocation, visas first go to those with the oldest priority dates. If, however, 2,822 people from a single country (including dependents) receive visas in a single fiscal year, then no additional applicants chargeable to that country may receive visas until the new quota becomes available in the next fiscal year. Unlike the second employment based preference category (EB2), there are no unused visas from the Worldwide category to be made available to the single state limited countries.
At the end of the first quarter of fiscal year 2010, the Worldwide EB3 cutoff date stands at June 1, 1001. By law, no more than 27% of the overall quota may be allocated in any of the first three quarters. This means that approximately 10,800 visas will be used in EB3 during the first quarter. This figure is greater than the total number of EB3 AOS applicants shown in the CIS backlog charts (8,884) for all applicants with priority dates earlier than 2002 and is further evidence that those charts do not reflect the full size of the demand.
The Visa Office had earlier said that they expected to see the cutoff date for Worldwide EB3 move into early 2006 by spring of next year. This seems likely to happen. For single state limited country applicants, however, the story is very different.
For EB3, the maximum number of visas that may be issued in a single year to applicants from single state limited countries is 2,822 visas. Initially, India and possibly Mexico will have individual cutoff dates that will lag behind the Worldwide EB3 cutoff date. As the Worldwide cutoff date advances, Mexico should catch up, but then the Philippines will start to lag.
The country that is going to see the worst delays, by far, is India. Let's take another look at the CIS reported demand for EB3 India AOS applicants, understanding that these numbers represent minimum demand and that the actual demand is greater:
2001 and earlier
If we subtract 2,822 visas per year from these total, we see that all of the pre-2002 India EB3 cases shown here should be resolved before the end of FY 2010. This is where things slow down. At the start of FY 2011, there would still be 7,756 AOS applicants in line with priority dates for 2002. Reducing this number at a rate of 2,822 visas per year it will take almost three and a half years to eliminate all of the currently pending (and reported) Indian EB3 adjustment of status cases. This would be some time in the late winter or early spring of 2015. At that point, the Indian EB3 cutoff date would likely move into 2003. At that rate, it would then be approximately 2020 before the cutoff date would move into 2004. There isn't much point in taking this exercise any further. It is obvious that Indian EB3 is not going to go anywhere absent legislative relief.
Indian EB3 applicants have three options:
1. Stay the course and wait.
2. Hope for legislative relief.
3. Find a way to upgrade to EB2.
Unfortunately, there isn't a fourth option.
If you would like to discuss this article, please post your comments in the thread we have created for this purpose at http://www.immigration-information.com/forums/general-immigration-questions/9599-just-how-bad-is-the-backlog-discussion-thread.html#post38022