India EB-2 Quota Will Likely Retrogress to Early 2005

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Charles Oppenheim at the State Department thinks that the EB-2 category for India will soon retrogress from May 2009 to "early" 2005 - a five year longer wait.

Charles Oppenheim, Chief of the Visa Control and Reporting Division at the State Department recently told AILA that he estimates the EB-2 category for India will likely retrogress from May 2009 to "early" 2005 - a five year longer wait.  Indian engineers are probably about to wait a lot longer for a green card.

The second employment-based immigrant preference category is for jobs that require a worker with at least a master's degree, or alternatively a bachelor's degree and five years of experience.  There is an annual quota on employment-based immigrant visas by preference category and by country.  Countries that use a lot of visa numbers are "oversubscribed" and applicants from these countries must wait in a queue as the annual allocation is distributed on first in first out basis.

The only oversubscribed countries for employment-based immigrant visas are China, India, Mexico and the Philippines.  Of these only China and India are oversubscribed in the second preference category.  Indian priority dates as of the October 2014 Visa Bulletin are May 1, 2009 for the second employment-based preference category and November 15, 2003 for the third employment-based preference category.

A five year retrogression is fairly rare and sure to upset people.

What can Indian applicants do?

First, consider your country of birth. An immigrant visa applicant's country of chargeability is not his country of citizenship or nationality: it's his country of birth.  INA 202(b). If you are an Indian citizen born in Dubai while your parents were on vacation, your country of chargeability is Dubai, not India.  This is so even if you have absolutely no relationship with Dubai, not Dubai citizenship, not even a Dubai tourist visa.

Second, consider cross chargeability. If an Indian-born applicant has a spouse or child born in a different country, it is possible to "cross charge" the visa applicant's country of birth to the spouse or parent's country of birth. For example, if an Indian-born immigrant visa applicant has a spouse born in Dubai and a child under age 21 born in India, it is possible for the applicant, the spouse and the child to all apply for immigrant visas under the spouse's country of birth, which is Dubai. INA 202(b)(1)-(2). Unfortunately, while children can use their parents' country of birth, parents may not use their children's country of birth.  INA 202(b)(1).  Assuming that Mr. Oppenheim's estimate proves accurate, the difference cross chargeability makes in this example will be no wait at all versus almost a ten year wait.  The cross chargeability rules are found at INA 202 and 22 CFR 42.12.

Third, hang in there.  While it's disappointing to see the numbers retrogress this far, it's helpful to remember the good things.  Those with an approved I-140 petition can obtain unlimited three year H-1B extensions with any employer beyond the six year maximum stay.  It's also possible to retain the priority date from an already approved I-140 petition if a different employer later files a new I-140 petition.  It's also possible for the employer that filed an EB-3 petition to later file an EB-2 petition for a different job for the same employee and use the earlier I-140 priority date.

Sean Olender has practiced immigration law in the San Francisco Bay Area for more than sixteen years.  He currently serves as an adjunct professor of law at the University of San Diego School of Law and has served on San Francisco Attorney Magazine's Editorial Board, the Board of the Northern California Chapter of AILA, and Chair of the San Francisco Bar Association's Immigration Committee.  His articles have been published in San Francisco Attorney Magazine, the San Francisco Chronicle, and The Verdict.

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