US Visa Backlog Badly Impacting  Indian Nationals 

By Mishita Jethi

Special to India-West

NEW YORK, NY – Every month, the Department of State (DOS) comes out with a visa bulletin. The dates in the visa bulletin show which green card applications can move to the final stage. The August 2023 and September 2023 Visa Bulletins have once again highlighted the persisting visa backlog issue that continues to affect India-born nationals living in the United States on temporary visas. 

These bulletins saw a significant retrogression in these dates. Among others, the growing backlog of visa cases has pushed back the Final Action Dates (FAD) of many categories. The worst-hit category for India-born nationals was the Employment Based First Preference (EB-1) category, which retrogressed to January 1, 2012. This means that those India-born nationals who wish to file for their adjustment of status (AOS) or apply for their green card application at a U.S. consulate abroad will only be able to do so if their priority date is on or before January 1, 2012. 

Consider for a moment what the world looked like in January 2012. Barack Obama was still in his first term as President; Hurricane Sandy was yet to devastate the East Coast of the United States; Queen Elizabeth II was yet to celebrate her Diamond Jubilee; the Curiosity rover was yet to land on Mars; Instagram was not yet available for Android users. It should behoove us to think that there are some India-born nationals who have been living in the United States since January 2012 and have not yet been able to apply for and receive their permanent residence status in the Unites States due to the heavy visa backlog.

This visa backlog results from the overwhelming demand for employment-based green cards. The annual limit for employment-based visas is set by Congress and has remained unchanged since the 1960s and 1970s. However, due to the changing economic and technological landscapes, the demand from certain countries like India and China has exceeded the limit for many years. This has led to a backlog of foreign nationals who are waiting for their visas to be processed. This protracted uncertainty also takes a toll on individuals’ career aspirations, family plans, and life choices.

This heavy backlog for India-born nationals in EB-1 category indicates that even individuals deemed as having “extraordinary ability” or those who are “outstanding researchers” or “multinational managers and executives” may also have to wait for several years to get permanent residence status. In many cases, spouses of these visa holders are unable to work due to lack of work authorization for dependent visa holders. This retrogression impacts plans including decisions regarding employment, education and in many cases buying homes and other assets, until their priority dates become current again. Imagine postponing major life decisions on the basis of vague and intangible factors such as “available visa numbers” and “priority dates”. For those living under constant stress of nonimmigrant status renewals, visa stamping, and aging-out children, the smallest change in visa backlog could mean the difference between finally realizing the American Dream of a home with a white-picket fence and packing up one’s belongings after decades of living in the United States and re-starting life elsewhere. 

The visa backlog also directly harms American businesses. Industries like technology and healthcare that rely heavily on high-skilled immigrants, particularly those from India and China, are hampered by this backlog. Delayed access to skilled workers can hinder innovation and competitiveness, potentially pushing companies to establish operations elsewhere. Countries like Canada and Australia are already streamlining their immigration systems to attract highly skilled individuals from other countries. Should that trend continue, the United States may lose its status as the destination of choice for these highly skilled individuals in the coming years.

It is not yet all doom-and-gloom though, since the DOS has mentioned in the August 2023 Visa Bulletin that it expects the FAD to advance in the October 2023 Visa Bulletin – at least until the dates announced in the July 2023 Visa Bulletin. However, DOS has cautioned that this advancement will depend completely on the demand for EB-1 visas by India-born applicants and the FY 2024 annual limit for employment-based visas. In other words, while we do expect to see some movement in the EB-1 category by October 2023, if the category continues to remain as oversubscribed as it is now (either because of applicants having multiple approved petitions in every category or because the demand from other countries continues to remain as strong as it is now), the advancement may not be too significant.

In conclusion, the significant EB-1 retrogression in the August 2023 and September 2023 Visa Bulletin stands as a reminder that urgent reform is needed to address this deeply concerning issue that continues to plague the highly skilled workers born in India – who but for their country would not have been stuck in this seemingly unending backlog of visa numbers. Sustainable changes in the immigration policy of the United States are needed to ensure that the country can continue to attract and retain the world’s brightest minds and maintain its position as a global leader in innovation and progress. Failure to do so will result in a significant loss, not just for Indian nationals but for the United States as a whole.

(Jethi, based in New York, is a partner in the Chugh Firm)