How New USCIS Rules Could Help Indians in Green Card Backlog

Written by CPTDog | Apr 17, 2024 11:49:30 PM

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 This congestion highlights a system overwhelmed by restrictive caps and outdated policies: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.

Without intervention from Congress, the backlog is projected to worsen. The Congressional Research Service (CRS) predicted in 2020 that the number of Indians waiting in the top three employment-based green card categories will swell to 2,195,795 by fiscal year 2030, and clearing this backlog could take as long as 195 years.

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 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

Utilizing the Schedule A process for sponsorship is not only cost-effective for employers but also highly advantageous for foreign workers caught in the green card backlog. It allows for the swift approval of an I-140, which is crucial for those needing to extend their stay beyond the six-year limit of the H-1B visa.

What to Do When Your H-1B 6-Year Limit Ends Without PERM Approval?

If you're nearing the end of your H-1B 6-year limit and you haven't received PERM approval, you still have a few options to consider:

H-1B Extension Under AC21

If you have an approved I-140 (Immigrant Petition for Alien Worker), you may be eligible to extend your H-1B status beyond the 6-year limit under the American Competitiveness in the Twenty-first Century Act (AC21). Extensions can be granted in one-year increments if your green card process was started at least 365 days before the end of your 6-year limit.

Change of Status

You could consider changing your status to another non-immigrant visa category. For instance, switching to an F1 visa and utilizing Day 1 CPT allows you to continue working while your permanent residency application is in progress.

Employment under Schedule A

As previously discussed, if you qualify for a profession under Schedule A, your employer can file an uncertified labor certification directly with USCIS, which might expedite your green card process.

Consular Processing

If you must leave the U.S. after your H-1B expires, you could continue your green card application through consular processing in your home country.

Start a New H-1B Period

Generally, you must leave the U.S. for at least one year before you can apply for a new H-1B visa which resets the 6-year clock. However, this option requires leaving and then re-entering the U.S., which might not be feasible or desirable for many.

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