A lawsuit filed by over 100 Chinese and Indian immigrants claims USCIS delays are threatening thousands of “rollover” employment-based green cards. Without court intervention, the allocation will be eliminated.

Many immigrants wait years for an employment-based visa to be available. In the lawsuit, the petitioners ask the courts to ensure USCIS processes their adjustment-of-status applications before the end of the fiscal year, which is September 30. The allotment of green cards will be lost on September 30. The courts could also reserve the visa numbers through the next fiscal year to keep them available if USCIS is not able to process applications in time.

The petitioners include 125 Indian and Chinese nationals who are sponsored and approved for employment-based green cards. They have been waiting for green card allotment to become available. Families of these petitioners are also affected, as some of them have children who have grown up in the U.S. but are not yet citizens.

There are 140,000 employment-based green cards allotted annually under the Immigration and Nationality Act. There are 250,000 family-based green cards available each year as well. Any family-based green cards can rollover the following year as employment-based visas, and vice-versa. The petitioners state this is proof that the USCIS wants to ensure all green card allotments are available for use.

However, for the current fiscal year, the petitioners stated USCIS is breaking this mandate. In October 2020, USCIS stated 122,000 unused family-based green cards would roll into the employment-based cap. The employment-based caps are not subject to country-based caps. Therefore, this is a ripe opportunity to make a dent in the backlog of those waiting years for employment-based green cards, particularly those from India and China. With current rates of processing, USCIS is unlikely to review the over 273,000 pending adjustment of status applications. The petitioners are asking the courts to get involved to protect the allotment.

ILBSG will continue to monitor this case and others that may affect immigration-related cases. If you have questions about your immigration issue, contact us. We are here to work with you to ensure you get the right advice for your specific case.

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