Covid brings unlikely relief to Indian H1-B Green Card aspirants

As Covid continues to impact every aspect of work and life, it has recently given welcome relief to a small group of people.

Many Indian H-1B families, waiting for years for their Green Cards and practically giving up hope of receiving them soon, are suddenly accelerating through the process. The bizarre development is happening at the cost of those aspiring to obtain US permanent residence through family sponsorships because of delays in processing family visas at US Counselor posts worldwide.

America remains the most sought-after country for migrants. While illegal immigration continues unhindered south of America’s border (the government estimates that 178,000 people crossed the border illegally in April alone), legal immigration is very tightly controlled. Of the 1.2 million Green Cards granted each year legally, Congress has stipulated that they be distributed according to a complex set of rules not to disadvantage any particular constituency or country.

The three main beneficiary groups are the immediate family members of US citizens (unlimited green cards/year), family-sponsored applicants (226,000 green cards/year), and employment-based workers whom companies sponsor via H-1B visas (140,000 green cards/year).

When Covid hit consular outposts worldwide, the processing of family-based visa applications slowed as officials worked from home, or in extreme cases, returned to the US, effectively shutting the store down. For fiscal 2021, nearly 150,000 family-based applications remained unprocessed.

Unused visas

The law states that any unused visas in one bucket during any year must spill over to another bucket if there is demand. As a result, the number of available employment-based visas more than doubled, from 140,000 to a whopping 290,000 green cards. Charlie Oppenheim, the US State Department's Chief of the Visa Control and Reporting Division, said in a webinar that the employment bucket for fiscal 2022, which starts this October 1, would have 135,000 additional visas (for a total of 275,000).

The spillover visas are distributed evenly across all countries with H-1B applications pending. Suppose Ireland, which received 10,500 spillover visas under the 7 per cent per-country rule, has 500 H-1B applications pending. While all of them will immediately become current, Ireland cannot use all that was additionally allocated. The remaining 10,000 visas will spill over again to the China and India buckets, the two countries with the greatest demand for Green Cards.

The result has been extraordinary as the new visas get gobbled up by hungry Indians frustrated in line for years. An examination of dates in the visa bulletin shows how remarkable the movement has been. For Indian H-1B employees in the third preference for April 2021, the Final Action Date was September 1, 2010. As a result of the bonanza of spillover visas, this spot raced forward five months, to February 1, 2011, in just one month. Typically, this would advance a month with the passage of every 2-3 months. Anyone with a priority date earlier than the Final Action Date may apply to adjust their status from H-1B to permanent resident.

Tens of thousands of H-1B families who risked having their children age out from their applications when children turn 21 are overjoyed.

But for each Green Card that is moved from the family bucket to the employment bucket, it means a delay for family members who are eager to start life anew in America. For many countries, such as Mexico, Guatemala, Nicaragua, and the Philippines, family-based visas are the main route for aspirants to obtain permanent residence. Even Indian-Americans, particularly among large Gujarati, Punjabi, and Telugu diaspora populations, are aggressive in sponsoring relatives to immigrate to America.

Covid has shown yet again that in a zero-sum game, one person’s food is another individual’s poison.

The writer is Managing Director,

Rao Advisors LLC, Bedford, TX.

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