EB-2 or EB-5? New Wait Line Estimates for Indian Applicants

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One of the most common questions I am asked by Indian H-1B holders is whether to continue waiting in the long EB-2 backlog, or to jump to the presumed shorter EB-5 category. Previously, this was a pretty easy question to answer – EB-5 was faster unless one’s EB-2 priority date was very close to becoming current. However, as Indians have filed an increasing number of EB-5 petitions in the last year, this question has become more difficult to answer.

We first heard about an EB-5 backlog for Indian born applicants earlier this year, estimating that a backlog would begin sometime in mid-2019. But we didn’t know what that backlog would look like. It was too early to answer the question – how long will it take to get my green card if I do EB-5?

Well, now we have some more information about both the EB-2 and EB-5 backlogs. Last week at the AILA/IIUSA EB-5 Forum, Mr. Charles Oppenheim, Chief, Immigrant Visa Control & Reporting, U.S. Department of State (“DOS”) gave a keynote address estimating wait times for each country if an applicant filed an I-526 petition on October 30, 2018:

  • China (presently 3,800 visas per year): about 14 years
  • Vietnam (700 visas per year): about 7.2 years
  • India (700 visas per year): about 5.7 years
  • South Korea (700 visas per year): about 2.2 years
  • Taiwan (700 visas per year): about 1.7 years
  • Brazil (700 visas per year): about 1.5 years

The 5.7 year estimate represents the time between I-526 petition filing and EB-5 visa availability, including the processing time for adjudicating the I-526 petition. USCIS petition processing times vary from a few months to a few years. Mr. Oppenheim stated that, except for China, these estimates may be considered the “worst case” scenario.

So how does this compare to the EB-2 waiting line? Mr. Oppenheim explained that there are 14,400 “pre-adjudicated” Indian I-485 applications in the EB-2 category that have not yet used an EB-2 number. Because there are approximately 2,800 visas available per year in this category, Mr. Oppenheim estimates that it will take approximately 5 years to process the known Indian demand for applicants with EB-2 Priority Dates earlier than January 2011.

An Indian I-526 petition filed today is estimated to yield a green card in 5.7 years. Therefore, for an Indian with an EB-2 Priority Date later than January 2011, applying under the EB-5 category now may be faster than waiting for a visa number in the EB-2 category. However, each applicant should consult with immigration counsel based on his or her individual circumstances.

Speeding up the green card process is especially important for individuals in H-1B status who must continually extend their status and contend with limited career flexibility. Additionally, H4 spouses who are eligible for work authorization should consider proposed changes aiming to cancel this benefit. Many other H4 visa holders cannot obtain work authorization at all. And those with children born outside of the United States face the risk that the children will turn 21 before their parents receive a green card, thereby “ageing out” of the green card process entirely.

I have personally helped many Indian families plan for their immigration future and figure out the best path for them. Feel free to reach out to me atrblanco@wolfsdorf.com if you would like to setup an appointment and help you decide what is best for your family.

This post originally appeared on Wolfsdorf Rosenthal Immigration Attorneys


About The Author

Robert J. Blanco specializes in business and employment immigration cases. He prepares both immigrant and non-immigrant petitions for skilled workers, executive managers, high net worth investors, and people of extraordinary ability in the arts, sciences, and business. As a member of the firm’s EB-5 team, Mr. Blanco prepares cases for individual investors and advises U.S. businesses on how to structure investment projects under the regulations of the EB-5 program. He also represents clients before the United States Citizenship and Immigration Services (USCIS).

Mr. Blanco graduated cum laude with a Bachelor of Science degree in Business Administration from the McDonough School of Business at Georgetown University. He earned his Juris Doctor degree from Loyola Law School with a concentration in Corporate Law. Mr. Blanco is admitted to practice law in the state of California.