Introduction
Recent data from U.S. Citizenship and Immigration Services (USCIS) unveils the stark challenges faced by over a million Indians enmeshed in the employment-based green card backlog. These figures bring to light significant systemic issues within the U.S. immigration framework, which disproportionately impact highly skilled Indian professionals. Amid these challenges, a recent USCIS policy update presents a potential pathway to circumvent traditional PERM labor certification processes. This blog explores whether these changes can truly facilitate a faster immigration process for those stuck in lengthy backlogs.
The Extent of the Backlog
Analysis by the National Foundation for American Policy (NFAP) as of November 2, 2023, shows that approximately 1.2 million Indians, including dependents, are currently waiting in the first, second, and third employment-based green card categories. This congestion highlights a system overwhelmed by restrictive caps and outdated policies:
- EB-1 (First Preference): Encompasses individuals with extraordinary skills, professors, researchers, and multinational executives, with 143,497 Indians currently waiting.
- EB-2 (Second Preference): For professionals with advanced degrees or exceptional abilities, involving 838,784 Indians in the backlog.
- EB-3 (Third Preference): Includes skilled workers and professionals with at least a bachelor’s degree, with 277,162 Indians affected.
USCIS Policy Update on Schedule A Sponsorship
The recent USCIS policy update provides a clearer interpretation of “science or art” for Schedule A, Group II occupations, aligning with the U.S. Department of Labor’s (DOL) definition. This expansion could significantly aid employers in sponsoring foreign workers by allowing them to bypass the PERM labor certification, thus avoiding the labor market test. This change is particularly pertinent for industries experiencing a domestic shortage of qualified workers.
According to Houston Immigration Law Firm Reddy Neumann Brown PC, "The clarification streamlines the process, allowing foreign workers to avoid delays associated with PERM labor certification. While an employer must still obtain a Prevailing Wage Determination (PWD), foreign workers won’t face the lengthy wait of over 13 months to secure an approved PERM application from the DOL. Sponsorship through the Schedule A process is not only cost effective for employers, but very beneficial for foreign workers stuck in the green card backlog who need an approved I-140 quickly in order to extend beyond the H-1B 6 year limit."
Impact and Potential Benefits
- Expanded Eligibility for Schedule A: By broadening the definition of eligible sciences or arts, more individuals may qualify under the Schedule A, Group II designation, thus sidestepping lengthy PERM processes.
- Faster Green Card Processing: Eliminating the need for PERM certification reduces administrative delays, potentially shortening the green card journey for many Indians caught in the backlog.
- Strategic Advantage for Employers: This policy enables employers to more swiftly secure green cards for crucial international talent, enhancing their ability to compete on a global scale.
Understanding Schedule A:
For employment-based 2nd and 3rd preference petitions (EB-2 and EB-3), employers typically need to obtain PERM labor certification from the Department of Labor (DOL) before they can file an I-140 Immigrant Petition with USCIS. However, Schedule A presents an exception for certain professions where the DOL has recognized a shortage of qualified U.S. workers. In such cases, employers can bypass the DOL review process and directly submit an uncertified labor certification to USCIS, eliminating the need for a labor market test. Schedule A is divided into two groups: Group I, which includes registered nurses and physical therapists, and Group II, which covers in
