The employment-based green card allows foreign nationals to settle and pursue a career in the United States based on an offer of employment. Securing one is the goal of many employees and employers, but the process poses challenges.
Staying current on the latest trends and policy changes is essential for successfully navigating this ever-evolving visa landscape.
Skyrocketing Demand Meets Inflexible Limits
The past two fiscal years set new records for employment visa usage, fueled by a temporary double-up of available numbers. However, even the boosted quotas proved inadequate to meet escalating applicant demand.
In fiscal year (FY) 2022, approximately 281,507 employment visas were allotted, over double the normal annual ceiling, thanks to unused family-sponsored visas carried over from FY 2021. Yet intense demand absorbed the entire available supply before October 1, 2022, apart from 6,396 EB-5 visas.
The trend repeated in FY 2023 when 197,091 employment-based green cards were allocated, augmented by 57,000 Family preference visas unused in FY 2022. Again, preliminary estimates show the full inventory was utilized apart from 10,874 leftover EB-5 visas.
This appetite for employment green cards far outstrips the 140,000 ceiling set by Congress over 30 years ago. Absent legislative revisions, annual limits seem likely to revert to 140,000 visas in coming years. Such constraints guarantee lengthening backlogs as applicant volume continues to rise over time.
Backlogs and Retrogression Expand
Runaway demand colliding with inflexible category caps and per-country limits has increasingly led State Department visa bulletins to retrogress priority dates across multiple categories.
This trend manages intake volume when applicant totals already exceed the foreseeable future’s supply under current law.
In October 2022, the visa bulletin showed reduced priority dates for Indian nationals in EB-2 and EB-3 to prevent demand from instantly swallowing the entire year’s allocation.
Similarly, in July 2023, rapid surges in I-140 filings and estimated visa usage forced DOS to retrogress India EB-3 dates to avoid overshooting limits.
Such necessary date regressions have fueled backlog expansion as thousands now face lengthened waits. Meanwhile, Rest of the World (ROW) applicants, for the first time, have lost “current” status at the start of a fiscal year in EB-2 and EB-3, indicating more countries are reaching limits.
Pandemic Productivity Declines
The early months of COVID-19 introduced sudden changes for USCIS, severely limiting operational capacity between March 2020 and the summer of 2021. Office closures, lockdowns, social distancing protocols, and hiring freezes took an immediate toll.
Biometrics appointments and interviews ceased completely at first as staff shortages and health risks prevented in-person contact. An abrupt temporary closure of overseas USCIS offices further compounded productivity declines.
Remote work and adaptations slowly restored partial functionality, but procedural slowdowns persisted. Applicants often waited many extra months for decisions. And backlogs swelled dramatically across petition types, totaling nearly 7.8 million delayed cases at one point.
Expedited Policy Changes
Responding to urgent needs, USCIS introduced select policy changes in late 2022 and 2023, narrowly targeting key pressure points for employment-based applicants.
In September 2023, guidance established 5-year validity periods for employment authorization documents tied to pending I-485 adjustments after the previous standard capped annual renewals. This promises more workforce stability amid protracted I-485 delays.
Earlier regulations also extended eligibility for premium 15-day processing to all I-140 petition filings rather than solely those in shortage occupations. Higher fees now unlock expedited decisions for any role.
Plus, USCIS clarified rules around eligibility and qualifying criteria for various employment-based green card pathways, such as EB-1 and EB-2. Preventing common denial reasons through education protects an applicant’s chances when criteria are actually met.
Shifting Circumstances Across Categories
Applicants within specific visa categories experience differing timelines based on evolving demand and backlogs. But nearly all now face lengthier waits compared to several years ago, with some exceptions.
The EB-1 category remains current for worldwide applicants outside India and China, though their dates retrogressed before rebounding slightly in October 2023.
EB-2 now lags more than ten years for Indian applicants and almost three years for China-born applicants while retrogressing for ROW for the first time. EB-3 shows similar patterns across countries.
Meanwhile, the chronically oversubscribed EW category continues deteriorating for ROW nations beyond the “current” status India and China applicants retain. On the other hand, EB-4 and EB-5 remain current everywhere except, again, India and China.
Navigate Employment-Based Green Card Applications with Pride Immigration
Recent years delivered significant volumes of employment-based green card approvals and total visa usage, fueled partially by temporary access to bigger visa pools.
However, the underlying mismatch between tightly capped visa limits and swelling applicant demand indicates new challenges down the road.
Employment-based applicants of all types should prepare for mounting uncertainty and fluid conditions in the future.
With complex, shifting policies and unpredictable priority date movements, navigating the green card process poses difficulties even for seasoned applicants.
Pride Immigration has extensive experience advising corporate and individual clients on business immigration solutions.
Beeraj Patel, Esq.
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