Indians at Risk of Losing Opportunity to Receive Green Cards This Year Because of Covid-19 Backlogs

A new lawsuit, filed by a group of Indian and Chinese nationals, challenges the slowdown in adjudicating green card approvals in a bid to save the annual quota of green cards lapsing at the end of the fiscal year. 

“Happy to report we just filed Chakrabati v. USCIS & Ur Jaddou, challenging the expected loss of 100K green cards due to delays in adjudicating employment-based adjustment applications,” said an Aug. 2 tweet by noted immigration lawyer Greg Siskind, founding partner at Siskind, Susser PC, and attorney to the plaintiffs. 

Happy to report we just filed Chakrabati v. USCIS & Ur Jaddou, challenging the expected loss of 100K green cards due to delays in adjudicating employment-based adjustment applications. We are looking forward to this fight. @ckuck @LilySAxelrod @jeffjoseph @jwhollis @immlawACHall pic.twitter.com/VK6g3QIh93

— Greg Siskind (@gsiskind) August 3, 2021

The petitioners had filed applications for permanent residency during or before December 2020, along with their dependent family members (spouses and minor unmarried children).

In a blog on his law firm’s website, Siskind explained the reason for the lawsuit. “Because of the complex system for visa quotas and ‘rollovers,’ thousands of people (mostly Indian and Chinese nationals) are at risk of losing the opportunity to receive their green cards this year, which will make the already-crushing backlog longer for all employment-based visa applicants,” he wrote. 

“This lawsuit aims to force USCIS to adjudicate employment-based Adjustment of Status applications before the end of the fiscal year in September 2021, or to ‘hold over’ visa numbers so that they do not disappear if USCIS fails to timely adjudicate these cases,” Siskind wrote. In addition to seeking the immediate adjudication of the 125 plaintiffs, “we are also asking a judge to order USCIS to reserve all of the available visa numbers so they actually get used and not wasted,” Siskind wrote. 

Due to the Covid-19 pandemic, a very low number of family-based green cards were approved in fiscal 2020, resulting in them being ‘rolled-over’ to the employment-based category this year. USCIS follows an October to September year. The lockdown forced immigration offices around the country and U.S. consulates around the world to close down. In addition, President Donald Trump in April 2020 placed a travel ban on green-card applicants abroad who were being sponsored by family members in the U.S. “As a result, the U.S. issued about 120,000 fewer family-based green cards last year than it would have in a typical year,” The Wall Street Journal reported. 

“Recently backlogged Indian workers face an impossible wait of nine decades if they all could remain in the line,”

The Wall Street Journal reported on Aug. 4 that nearly 1.2 million immigrants, “most of them Indians working in the tech sector,” and “have been waiting in line to become permanent residents in the U.S., are watching a prime opportunity to win a green card slip away.” The report says that the U.S. Citizenship and Immigration Services (USCIS) “started off its fiscal year in October 2020 with 120,000 more green cards than the 140,000 it typically hands out, a prospect that promised to put a meaningful dent in the yearslong backlog. However, with less than two months left in the fiscal year, it is far from reaching that goal. 

Indians, followed by the Chinese, face a decades-long wait time for permanent residency, due to the annual country caps on the number of green cards that can be issued. According to the CATO Institute, skilled Indian workers make up 75 percent of the employment‐based backlog. “Recently backlogged Indian workers face an impossible wait of nine decades if they all could remain in the line,” the institute estimates, and adds that “more than 200,000 petitions filed for Indians could expire as a result of the workers dying of old age before they receive green cards.”

“Almost 95 percent of the employment-based green cards are issued to people who are already in the U.S., unlike the family-based ones” Anirban Das, president of Skilled Immigrants in America, told American Kahani. “So many of them who have filed [for green cards] are in this country and have been waiting for almost 10 years. “So this could be a big reprieve for them to get out of this H-1B visa system, and eventually get into the pathway to green card and citizenship.” 

Das estimates that there are close to a million people from India who are awaiting their green cards. “So if these green cards are wasted it would be terrible because essentially due to the country cap, it is the Indians who are suffering with the backlog,” he says. “This doesn’t affect people from other countries applying for green cards, because their dates are always current,” he explains. “So as long as USCIS processes their green cards, it’s just the processing time that they have to wait for.” 

However, he notes that “if these 100,000 green cards are wasted, it basically increases the wait time of Indians for several years, just because of the country cap. Once these visas are gone, the USCIS will go back to the country cap with 2,800 green cards per category, so the wait time will exponentially increase for people who do not get this green card.”

While there are no recent data “on precisely how many employment-based green cards have been processed,” the Journal quoted a State Department official estimating that “the government would end September with about 100,000 green-card numbers still on the table.” The most recent data from USCIS shows that approximately 273,000 employment-based green card applications were pending as of March 31, the Journal reported. 

(Top photo: Courtesy, Neha Mahajan/Skilled Immigrants In America)