Ask Sophie: How many employment green cards are available each year?

Here’s another edition of “Ask Sophie,” the advice column that answers immigration-related questions about working at technology companies.

“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”

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Dear Sophie,

I’m trying to figure out how long I have to wait for a green card.

I have two questions for you: How many employment green cards in each category are available every year? How do I make sense of the Visa Bulletin?

— Standing By in San Jose

Dear Standing By,

Thanks for reaching out to me with your questions! Before I dive into how many employment green cards are available each year, let me start by providing a bit of context on how the whole employment-based green card allocation system works, including priority dates, the Visa Bulletin, backlogs and more.

The green card process

Most employment-based green cards require an employer to sponsor you. The only two employment-based green cards that allow an individual to self-petition based on past or future work accomplishments (not investment) are the EB-1A extraordinary ability green card and the EB-2 NIW (National Interest Waiver) green card.

Applying for the EB-1A, the EB-1B green card for outstanding professors and researchers, the EB-1C green card for multinational managers and executives or the EB-2 NIW green card is generally a two-step process:

• Filing Form I-140, the green card petition, with U.S. Citizenship and Immigration (USCIS).
• If or when a green card number is available, file Form I-485, the application to register permanent residence or adjust status, to USCIS if the green card beneficiary is inside the U.S. If the green card beneficiary is outside of the U.S., the beneficiary must file Form DS-260 online, the U.S. Department of State’s electronic green card application.

Applying for the EB-2 advanced degree or exceptional ability green card or the EB-3 green card for skilled workers requires an employer sponsor to go through another step before filing an I-140: An employer must go through the PERM labor certification process with the U.S. Department of Labor. PERM certification is a time-intensive process aimed at protecting opportunities, wages and the working conditions of U.S. workers.

The EB-1B, EB-1C, and PERM-based EB-2 and EB-3 green cards all require U.S. petitioners to sponsor you based on a job offer.

Image Credits: Joanna Buniak / Sophie Alcorn (opens in a new window)

Availability of employment-based green cards

At least 140,000 employment-based green cards are available at the start of each fiscal year on October 1. If any family-based green cards from the previous fiscal year were unused, those are added to the employment-based green card total annual limit.

Each employment-based green card category is allotted a minimum of the total annual limit. The EB-1 (first preference for priority workers), EB-2 (second preference for an advanced degree or exceptional ability) and EB-3 (third preference for skilled workers) categories are allotted a minimum of 28.6% of the total annual limit available. The EB-4 (special immigrants) and EB-5 (investor immigrants) categories have a minimum of 7.1% of the annual limit available.

Due to the pandemic, many U.S. embassies and consulate offices were closed and many family-based green cards went unused since most family-based green card candidates live outside of the U.S. That benefitted employment-based green card candidates, many of whom are already living and working in the U.S. under a work visa. I expect the total annual limits for employment-based green cards will return to pre-pandemic levels.

If any EB-4 or EB-5 green card numbers are not used, they will be moved to the EB-1 green card category. If any EB-1 green card numbers are not used, they will be allotted to the EB-2 category, and if any EB-2 green card numbers are not used, which has not been the case for several years, the remaining will go to the EB-3 category.

In addition to the annual limit — or cap — on the number of green cards issued, each employment-based green card category has a per-country cap of 7%. This cap, which is based on an individual’s country of birth (not country of citizenship), impacts individuals born in India and China particularly hard since the demand for green cards from candidates born in these two countries far exceeds the green cards available due to the numerical and per-country caps. That means individuals born in India in FY 2023, for example, are allotted only less than 4,000 of the EB-1 category green cards, such as the EB-1A extraordinary ability green card or the EB-1C green card for multinational managers and executives.

In some instances, the number of green cards issued to individuals born in a country can exceed the per-country cap. If individuals born in other countries do not use all of the green cards allotted in each category, then the individuals who have waited in the green card line the longest (have the earliest priority date, which I’ll explain in a moment), will be given a green card in that category regardless of their country of birth. Individuals born in India have typically waited for a green card the longest.

Now, let me dive into the nuts and bolts of the Visa Bulletin, which is published by the U.S. Department of State.

Understanding the Visa Bulletin

Because the demand for green cards far exceeds the annual supply, the State Department issues the monthly Visa Bulletin to manage who can move forward in the green card process and who must continue to wait in line based on the availability of green card numbers. It affects both green cards issued through the immigrant visa process at U.S. consulates in various countries as well as adjustment of status managed through USCIS within the United States.

If a green card category in the Visa Bulletin is marked with a C, which stands for “current,” that means a green card number is immediately available for individuals born in that country. If the employment-based green card category and your country of birth are listed as current in the Visa Bulletin, you or your employer may submit the I-140 and I-485 to USCIS at the same time. This is called concurrent filing.

If there is a date listed, that’s called the priority cutoff date, and it means a green card number is available for those individuals who have a priority date before that cutoff date. Your priority date is either the date:

• You filed an I-140 for an EB-1A or EB-2 NIW to USCIS.
• Your employer filed an I-140 green card petition on your behalf to USCIS.
• The Labor Department accepted the PERM labor certification that your employer submitted.

The Visa Bulletin contains two charts for employment-based green cards: the “date for filing” and the “final action date.” The date for filing determines whether you are eligible to submit your paperwork for your final green card filing. The final action date indicates which priority dates have reached the front of the line to receive a green card. USCIS publishes its own monthly report, which indicates the set of dates it is currently using to issue green cards domestically, and it can change from month to month.

You need to know your (1) priority date, (2) country of chargeability and (3) EB category to read the visa bulletin. In certain cases, you can benefit from “cross-chargeability” and utilize your spouse’s country of birth instead of your own to move to a faster category. You might be able to use a priority date from an EB-1, EB-2 or EB-3 petition from a prior employer’s approved I-140 for a new employment-based I-140 petition.

Looking at the row for the EB category and the column for your country, you can see when the people who are currently being processed filed for their green cards in your category.

However, keep in mind that the years don’t necessarily progress linearly. In green card categories that have heavy demand, the priority cutoff date may go backward rather than advance as the fiscal year progresses. Called “retrogression,” this backward movement means an even longer wait in the green card line.

Every country currently has a cutoff date listed in the EB-2 green card category. In the Visa Bulletin for April 2023, the cutoff dates in the EB-2 category retrogressed for all countries except China, which remained the same. Given that, it can be a good idea to build up your qualifications to self-petition for an EB-1A, if you haven’t already.

All my best to you on your green card journey and beyond!

— Sophie

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