Mahaprasad Nanda

The United States offers various pathways for foreign nationals to obtain a Green Card, granting them lawful permanent resident status. However, many of these pathways, particularly those related to employment, are subject to annual limits and per-country caps, resulting in significant backlogs and long wait times for applicants from certain countries, including India. The concept of a "priority date" is central to this system, as it determines an applicant's place in line for a visa based on the date their petition was filed. For Indian nationals, these wait times can stretch for years, even decades, creating uncertainty and hindering their ability to live and work in the US.

This article explores alternative pathways for Indian citizens to obtain a Green Card without being subject to the priority date system. These pathways offer potential solutions for those seeking to bypass the long wait times associated with employment-based Green Cards. We will examine each pathway in detail, outlining the eligibility requirements, application process, processing times, and success rates, providing a comprehensive guide for Indian nationals seeking to obtain a Green Card without a priority date.

Green Card Through Marriage to a US Citizen

Marrying a US citizen is a well-established pathway to obtaining a Green Card. This family-based immigration route allows the foreign spouse of a US citizen to apply for permanent residency, provided they meet certain requirements. The process involves several steps, including filing the necessary forms, providing evidence of a bona fide marriage, and attending an interview with US Citizenship and Immigration Services (USCIS). This pathway offers a significant advantage: after three years of marriage and holding a Green Card, the foreign spouse can apply for US citizenship, compared to the standard five-year requirement for other Green Card holders. 

Requirements for a Marriage-Based Green Card

To be eligible for a Green Card through marriage, the couple must demonstrate that their marriage is valid and not entered into solely for immigration purposes. This typically involves providing documentation such as: 

• Marriage certificate
• Joint financial accounts
• Joint lease or mortgage agreement
• Photos and other evidence of a shared life together

Application Process

The application process for a marriage-based Green Card generally involves the following steps:

• File Form I-130: The US citizen spouse files Form I-130, Petition for Alien Relative, with USCIS to establish the relationship. 
• File Form I-485: If the foreign spouse is already in the US, they file Form I-485, Application to Register Permanent Residence or Adjust Status. 
• Attend Biometrics Appointment: The foreign spouse attends an appointment to provide fingerprints and photos. 
• Complete Medical Examination: The foreign spouse undergoes a medical examination by a USCIS-approved physician. 
• Attend Green Card Interview: Both spouses attend an interview with a USCIS officer to assess the legitimacy of the marriage. 

Processing Time and Success Rate

The processing time for a marriage-based Green Card can vary depending on various factors, including the workload of the USCIS service center handling the case and whether the foreign spouse is already residing in the US. While some sources indicate an average processing time of around 9.8 months others suggest a range of 10-13 months for spouses living in the US and potentially longer for those applying from abroad. The cost for applying for a marriage-based green card is $3,005 for couples living in the U.S. and $1,340 when one or both spouses live outside the U.S. 

It's important to distinguish between the overall success rate for family-based Green Card applications and the success rate specifically for those based on marriage. While USCIS data shows a 15% denial rate for Form I-130 applications in FY 2022, this includes all family-based categories. Focusing solely on marriage-based Green Cards, the success rate appears to be higher, with estimates suggesting an approval rate of around 88%. 

Green Card Through Asylum

Asylum is a form of humanitarian protection granted to individuals who have been persecuted or have a well-founded fear of persecution in their home country based on race, religion, nationality, membership in a particular social group, or political opinion. If granted asylum, individuals can apply for a Green Card after one year of residing in the US. It's important to note that for asylees, the date of adjustment of status will be one year before the green card is granted. 

Requirements for Asylum

To be eligible for asylum, applicants must meet the following criteria:

• Be physically present in the US or at a US port of entry. 
• Demonstrate that they have suffered persecution or have a well-founded fear of persecution in their home country. 
• Not be inadmissible to the US on grounds of criminal activity, persecution of others, or terrorism. 

Application Process

The asylum application process typically involves the following steps:

• File Form I-589: The applicant files Form I-589, Application for Asylum and for Withholding of Removal, with USCIS. 
• Attend Asylum Interview: The applicant attends an interview with an asylum officer to assess their claim. 
• Receive Decision: USCIS makes a decision on the asylum application. If approved, the applicant is granted asylum status. 
• File Form I-485: After one year of residing in the US with asylum status, the applicant can file Form I-485 to apply for a Green Card. 

Processing Time and Success Rate

The processing time for asylum applications can vary significantly depending on various factors, including the complexity of the case and the workload of the USCIS asylum office. As of January 2025, USCIS does not release data on the processing time for Form I-589. However, processing times for work permits based on asylum can provide some indication. Currently, it takes USCIS 5.5 to 15 months to process work permit applications (Form I-765) for individuals with approved asylum status. 

The success rate for asylum applications can also vary depending on various factors, including the applicant's nationality and the strength of their claim. In 2023, only 14.4% of asylum cases filed in immigration court were granted. However, recent data suggests that asylum seekers are seeing greater success rates under the Biden administration, with grant rates increasing from 29% in FY 2020 to 37% in FY 2021. 

Green Card Through Investment (EB-5 Visa)

The EB-5 Immigrant Investor Program, also known as the "golden visa," offers a pathway to a Green Card for foreign nationals who make a qualifying investment in a US commercial enterprise. This program provides a unique opportunity for investors and their families to obtain permanent residency in the US by investing in projects that generate at least $10,000 in US revenue and create or preserve jobs for US workers. Notably, the EB-5 visa program often presents a faster route to obtaining a Green Card compared to employment-based Green Cards subject to the priority date system, with recent cases seeing approvals within 12 months. 

Requirements for the EB-5 Visa

To qualify for the EB-5 visa, investors must meet the following requirements:

• Make a Qualifying Investment: Invest a minimum of $800,000 in a Targeted Employment Area (TEA) or $1,050,000 in a non-TEA. These areas are designated based on economic factors like high unemployment or rural location. 
• Create or Preserve Jobs: The investment must create or preserve at least 10 full-time jobs for US workers within two years of the investor's admission to the US as a conditional permanent resident. 
• Invest in a New Commercial Enterprise: The investment must be made in a new commercial enterprise, which is defined as a for-profit entity formed for the ongoing conduct of lawful business. This can be done directly or through Regional Centers, which are USCIS-approved investment projects. 

Application Process

The EB-5 visa application process generally involves the following steps:

• File Form I-526: The investor files Form I-526, Immigrant Petition by Alien Investor, with USCIS to demonstrate that they have made a qualifying investment. 
• Apply for Adjustment of Status or Consular Processing: If the investor is already in the US, they can file Form I-485 to adjust their status to conditional permanent resident. If they are outside the US, they must undergo consular processing to obtain an immigrant visa. 
• File Form I-829: After two years of maintaining conditional permanent residence status and fulfilling the job creation requirements, the investor files Form I-829, Petition by Entrepreneur to Remove Conditions, to obtain a permanent Green Card. 

Processing Time and Success Rate

The processing time for EB-5 visa applications can vary depending on various factors, including the workload of the USCIS service center handling the case. As of January 2025, the estimated processing time for Form I-526 is between 12 and 24 months. However, recent legislative changes have led to significant improvements in processing times, with some I-526E applications being approved within 12 months. 

The success rate for EB-5 visa applications is generally high. USCIS data indicates that the approval rate for I-526 petitions generally ranges from about 75% to over 80%. Recent data from USCIS shows that the approval rate for Form I-526E was 98% in FY2024. 

It's important to note that expedited processing is available for certain employment-based Green Card categories, including EB-1 extraordinary ability cases, EB-2, and EB-3 visas. By utilizing premium processing of the I-140 petition, applicants can potentially reduce processing times to 15 days. 

Recent Changes and Updates

The US immigration system is constantly evolving, with recent changes and updates potentially impacting Indian applicants. Some of the key developments include:

• Increased Processing Capacity: USCIS is allocating more resources to expedite Green Card processing, potentially reducing wait times for Indian applicants. 
• Visa Recapture: Unused visa slots from previous years are being utilized to address the backlog, which could benefit Indian applicants facing long wait times. 
• Focus on "Extraordinary Ability": USCIS has revised its guidelines for the EB-1 visa category, which includes individuals with extraordinary ability in fields like science, arts, education, business, or sports. This could provide a faster pathway for highly skilled Indian professionals. 
• Revised EB-1 Guidance: The updated guidance focuses on the type of evidence required to substantiate "extraordinary ability," potentially impacting how Indian applicants present their qualifications. 
• I-140 Portability: There are proposals to allow portability of the I-140 petition, which would enable applicants to switch jobs without restarting the Green Card process, offering more flexibility for Indian professionals. 

These changes reflect a growing recognition of the need to address the Green Card backlog and streamline the immigration process, potentially offering new opportunities for Indian applicants. However, it's crucial to monitor these developments closely and seek professional guidance to understand their implications for individual cases.

Conclusion

While the priority date system presents challenges for Indian nationals seeking employment-based Green Cards, alternative pathways exist that allow them to obtain permanent residency in the US without these long wait times. Marriage to a US citizen offers a relatively fast route, but it may not be suitable for everyone. Asylum provides a humanitarian option for those facing persecution, but the application process can be complex and the success rate varies. The EB-5 Immigrant Investor Program offers a faster alternative to employment-based Green Cards, but it requires a significant financial investment and careful due diligence.

Recent changes and updates to the Green Card process, such as increased processing capacity, visa recapture, and a focus on "extraordinary ability," offer potential benefits for Indian applicants. However, it's essential to stay informed about these developments and seek professional guidance to navigate the complexities of US immigration law. By carefully considering their options and taking proactive steps, Indian nationals can increase their chances of achieving their goal of obtaining a Green Card and building a life in the United States.