Family-based immigrationHow EB-2 Holders Can Address Family Visa Backlogs

The Employment-Based Second Preference (EB-2) visa category is an important pathway for professionals with advanced degrees or extraordinary abilities to obtain permanent residency in the United States. However, EB-2 visa holders, particularly those from high-demand countries such as India and China, often face significant challenges due to visa backlogs that delay the ability of family members to join them or adjust their status. Visa retrogression occurs when the demand for immigrant visas exceeds the supply, causing priority dates to move back or stall, especially for family members who wish to accompany or join the principal petitioner. This article provides a comprehensive guide for EB-2 holders to navigate family visa backlogs, offering practical strategies, government data, and actionable insights to mitigate delays and ensure family unity.

Understanding EB-2 Visa Retrogression

The U.S. Immigration and Nationality Act (INA) allocates approximately 140,000 employment-based immigrant visas annually, with the EB-2 category receiving 28.6% of the total, or approximately 40,040 visas, plus any unused visas from the EB-1 category. In addition, no single country can receive more than 7% of the total employment-based visas, or about 9,800 visas per year, unless unused visas from other countries are available. For countries such as India and China, where demand far exceeds this limit, backlogs are a persistent problem. As of the July 2025 Visa Bulletin, the EB-2 final action date for India is July 15, 2012, indicating a wait of over 12 years for new applicants. For China, the EB-2 final action date is March 22, 2020, indicating a waiting period of approximately 5 years.

Family members, including spouses and unmarried children under 21, are eligible for derivative status under INA Section 203(d), which allows them to accompany or join the principal EB-2 petitioner. However, retrogression affects these derivatives similarly, as their visa availability is tied to the principal’s priority date and country of chargeability. For example, an Indian EB-2 holder with a priority date of January 2025 may face a 12-year wait for his family members to adjust status or obtain visas, risking issues such as children aging out before turning 21.

Key Causes of Retrogression

• High demand: Countries such as India and China have large numbers of EB-2 applicants, resulting in oversubscription. For example, USCIS reported in 2023 that India had over 300,000 pending EB-2 and EB-3 adjustment of status applications.
• Per-Country Limits: The 7% per-country limit restricts visa availability and exacerbates backlogs for high-demand countries.
• Annual Visa Limits: The fixed cap of 140,000 employment-based visas has not been significantly adjusted since 1990, despite growing global demand.
• Processing Delays: USCIS and the Department of State (DOS) face significant backlogs, with more than 1 million adjustment of status applications pending as of 2024.

Strategies to Address Family Visa Retrogression

EB-2 petitioners can employ several strategies to mitigate the impact of retrogression on their families. These approaches, based on current immigration policy and government data, are designed to expedite visa availability, protect dependent children, and maintain family unity.

1. Use the Child Status Protection Act (CSPA)

The CSPA, enacted in 2002, protects dependent children from aging out (turning 21) before their parent’s priority date becomes current. The CSPA calculates a child’s “CSPA age” by subtracting the time an I-140 petition was pending from the child’s actual age when a visa becomes available. For example, if an I-140 has been pending for 18 months and the child is 21 years and 6 months old when the visa becomes available, the child’s CSPA age is 20 years, thus maintaining eligibility.

Action Steps:

• File Form I-485 (Adjustment of Status) as soon as the priority date is current according to the Dates for Filing table, which USCIS may use in certain months (e.g., October 2024 for EB-2 India: January 1, 2013).
• Monitor the monthly Visa Bulletin to anticipate when filing will be possible.
• Ensure that all documentation is complete to avoid delays in I-140 processing, which can maximize CSPA benefits.

2. Explore Alternative Visa Categories

If backlogs are significant, EB-2 holders may consider alternative visa categories with shorter wait times for their family members. For example, the EB-1 category (for extraordinary ability, outstanding researchers, or multinational executives) often has shorter or no backlogs for most countries except India and China. As of March 2025, EB-1 was current for all countries except India (April 15, 2022) and China (January 1, 2023).

Action Steps:

• Evaluate EB-1 eligibility by documenting extraordinary achievements or qualifications. For example, an EB-2 holder with significant professional accolades may qualify for EB-1, potentially advancing his or her priority date.
• Consult with an immigration attorney to evaluate a transfer to EB-1 or other categories such as EB-5 (investor visas), which may have set-aside visas for rural or high-unemployment areas without retrogression.

3. Use cross-chargeability

Cross-chargeability allows a family member’s visa to be charged to the country of birth of their spouse or parent, potentially bypassing retrogression. For example, if the spouse of an Indian EB-2 holder was born in Canada, the family’s visas can be charged to Canada, which is typically the current EB-2 country.

Action Steps:

• Verify country of birth for all family members to identify opportunities for cross-chargeability.
• Submit the necessary documentation to request chargeability to a less oversubscribed country to ensure compliance with INA Section 202(b).

4. Applying for Employment Authorization and Advance Parole

While waiting for a visa to become available, EB-2 holders and their families can apply for Employment Authorization Documents (EAD) and Advance Parole (AP) using Forms I-765 and I-131, respectively. These benefits allow family members to work and travel legally in the U.S. while their I-485 petitions are pending, even during periods of retrogression.

Action Steps:

• File Forms I-765 and I-131 at the same time as the I-485, if the filing schedule is applicable.
• Keep addresses updated with USCIS to receive notifications, as backlogged cases will be held at the National Benefits Center until visas are available.

5. Monitor legislative and policy changes

Legislative proposals, such as increasing the annual visa cap or eliminating per-country limits, could alleviate backlogs. For example, a 2023 McKinsey report highlighted that increasing visa allocations could reduce EB-2 wait times by 30-50%. While no major reforms have been passed as of June 2025, it is important to stay informed about policy changes.

Action steps:

• Track proposed legislation, such as those that remove per-country caps or exempt STEM graduates from visa restrictions.
• Work with advocacy groups or legal counsel to stay abreast of executive actions that may expedite processing, such as the potential for USCIS to prioritize certain categories.

Effects of Retrogression on Families

Retrogression can have a profound emotional and logistical impact on EB-2 families. Children at risk of aging out may face deportation or loss of status, while spouses may be unable to work or travel. A 2024 DOS report found that over 50,000 dependent children are at risk of aging out annually due to retrogression in the EB-2 and EB-3 categories. In addition, prolonged separation can strain family relationships, especially for those receiving consular processing overseas.

Table: EB-2 Visa Retrogression Wait Times (July 2025 Visa Bulletin)

Practical Tips for EB-2 Holders

• Stay proactive with documentation: Maintain current documentation, including birth certificates, marriage certificates, and I-140 approvals, to expedite filings when priority dates become current.
• Consult with experts: Work with experienced immigration attorneys to navigate complex scenarios such as CSPA calculations or cross chargeability.
• Track Visa Bulletins: Regularly check the DOS Visa Bulletin (released mid-month) to plan filings and anticipate retrogression trends.
• Plan for children’s future: If children are nearing 21, explore options such as F-1 student visas to maintain legal status during retrogression.

Future Outlook

The EB-2 visa backlog is unlikely to be resolved without legislative action. Proposals to increase the 140,000 annual visa cap or eliminate the 7% per-country cap have been discussed in Congress, but face political hurdles. A 2024 PwC analysis suggested that removing the per-country cap could reduce India’s EB-2 wait times to under 5 years, but no such legislation has been enacted as of June 2025. In the meantime, DOS and USCIS continue to monitor demand and adjust visa allocations on a monthly basis, with October typically offering the most favorable dates due to the new fiscal year visa reset.

Conclusion

The EB-2 visa backlog poses significant challenges for families seeking to reunite or adjust status in the U.S. By utilizing strategies such as the CSPA, exploring alternative visa categories, taking advantage of cross-exemption, and securing EAD/AP benefits, EB-2 holders can mitigate delays and protect the immigration status of their family members. Staying abreast of Visa Bulletin updates and potential legislative changes is essential to navigating this complex landscape. With careful planning and proactive measures, EB-2 holders can work to ensure family unity despite the constraints of retrogression.

Sources

• USCIS Employment-Based Immigrant Visas
  https://www.uscis.gov/green-card/green-card-eligibility-categories

Details eligibility and processes for employment-based visa categories, including EB-2 and derivative benefits.

• USCIS Adjustment of Status
  https://www.uscis.gov/green-card/green-card-processes-and-procedures/adjustment-of-status
  Explains the adjustment of status process, including handling retrogression and filing Form I-485.
• DOS Visa Bulletin
  https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin.html
  Provides access to current and historical Visa Bulletins, detailing priority dates and retrogression status.
• Child Status Protection Act (CSPA)
  https://www.uscis.gov/green-card/green-card-processes-and-procedures/child-status-protection-act-cspa
  Outlines CSPA provisions and calculations to protect dependent children from aging out during retrogression.