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U.S. visa backlog has adverse effect on Indian nationals

March 2008
U.S. visa backlog has adverse effect on Indian nationals

By Sadia Subhani

Sunita Ramoju seemed to be living the American Dream, though she came to the U.S. with little money and less idea of how to live life in a new land. She met a fellow IT professional from Mumbai, and together they scrimped and saved to start their own IT consulting business. After five years of working 18 hours a day, seven days a week, they were able to expand their business into one of the most successful in Silicon Valley. But now that dream is in peril, as they see their pool of employees, the vast majority of them Indian, slowly leaving the U.S., frustrated by the broken immigration system. Unable to fulfill contracts for services from many of their long-standing clients due to a lack of employees, Sunita’s company is on the brink of bankruptcy. “We’re not trying to hire anyone illegally,” Sunita says, “but the immigration backlash is hurting US businesses, even those of us who are seeking to follow all of the rules!”

Sunita’s business is hurting more than most, but the reality is that the outcry against illegal immigrants is causing Congress to shy away from approving any immigration legislation, even that which would benefit solely those immigrants who have never broken any laws. India is being affected more than most, due to the large numbers of its potential immigrants. Businesses like Sunita’s try to ensure a permanent work force by filing labor certifications and immigrant sponsorship petitions with USCIS on behalf of the employees. However, the two employment-based categories most commonly utilized, EB-2 (for advanced degree professionals) and EB-3 (for professionals and skilled workers), are severely backlogged, meaning that while the company can get through the first few steps of the sponsorship process, ultimately the employee may have to wait years before even filing the I-485 Permanent Resident Petition, and then longer to get permanent residency. The visa priority date is tied to the date the labor case is initially filed; the visa bulletin released every month indicates what priority date an applicant must have in order to file the I-485. Frustrated by the lengthy delays and feeling trapped in job positions, many Indian nationals have chosen to either return to India or take their skills to countries that are more welcoming.

In the popular EB-2 category, while the general country quota is “current,” meaning Green Cards are available to be immediately issued, for Indian nationals the category became “unavailable” as of February 2008. The bulletin notes that despite two retrogressions of the India cut-off date, demand for the visas remained so high that the annual limit for the category has been reached. In response to the situation, Charlie Oppenheim, Chief of Immigrant Visa Control and Reporting at the State Department, specifically addressed Indian EB-2 visa unavailability. He explained that by early November 2007, indications were that USCIS demand for India EB-2 visa numbers would place significant pressure on the overall annual limitation, leading to the decision to roll back the priority date for India EB-2 for December 2007 to 01JAN02, and for January 2008 to 01JAN00. Even with those significant retrogressions, USCIS requested almost 300 India EB-2 visas for December. There is some possibility that India EB-2 could again become available if it appears that the demand for India EB-1 visas will not exceed the annual limit, but that determination will not be able to be made until the second half of the fiscal year. The EB-3 category is backlogged to May 2001.

“There’s so much said about outsourcing, and how India is ‘stealing’ jobs,” says Sunita. “But at the same time, IT companies here can’t find qualified U.S. workers, and can’t keep foreign workers due to the extreme delays in getting permanent status. What do they expect us to do? Setting up an outsourcing center in India may be our only chance to survive.”

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