Simply put, there are not enough employment-based (EB) green cards in our immigration system to meet years and often decades of backlogged demand. This limits employees’ opportunities to contribute to U.S. employers’ success and overall economic growth because without green cards, many foreign nationals cannot easily be promoted, change jobs or even location, and often their dependents cannot work. Without reform, scientists, engineers and other professionals born in populous countries and sponsored for an EB green card today will likely not receive a green card until today’s preschoolers are graduating from college. While the president’s executive action may alleviate this situation somewhat, it is fundamentally in our nation’s interest to have a green card system that attracts the best talent to our shores and does not push away those already working here.
Any immigration reform must expand the green card pipeline to make it easier to attract and retain foreign talent. This can be accomplished through a variety of mechanisms, including:
Enacting a market-based or escalating green card cap to respond to future demand.
Making green cards immediately available to U.S. science, technology, engineering and mathematics (STEM) advanced degree graduates (and their dependents) if the principal applicant has a job offer.
Exempting from the employment-based cap those with extraordinary ability in the sciences, the arts, education and business, along with outstanding professors and researchers and multinational executives and managers, while reallocating the remaining EB green card numbers.
Exempting from the employment-based cap certain physicians who complete the foreign residency requirement, obtain a waiver of those requirements or have an interested state or federal agency request an exemption.
Exempting spouses, partners and children of EB green card holders from the employment-based cap.
Recapturing hundreds of thousands of green cards that went unused in prior fiscal years due to agency delays, and making them available today.
Eliminating the employment-based per-country limits to help countries with high green card demand.
Creating sixth year and eighth year L-1 extensions to enable professionals caught in the backlogs to remain in the United States. Similar extensions already exist for certain H-1Bs.
“When you think that these professionals took five years to get their Ph.D., then five more years working on post-doctoral work, we are talking about 10 years of investment. And still they have to wait. We’re dealing with adults who have raised families. They’ve bought homes. They’ve established themselves in this country. And yet, we lead them right into a brick wall and say, sorry you can’t stay.”
- Thomas M. Barnett, J.D., Director, International Office, The Scripps Research Institute, June 2014
Employment-Based Immigration Is Not a Priority in the Current Green Card System
In 2012, 14 percent of the roughly 1 million new legal permanent residents in the United States, entered on employment-based visas[i] (see Figure 1). Annually, just 140,000 visas are available to the five employment-based preference categories. The first three EB preferences are each allocated 40,000 visas per year, while the fourth and fifth preferences receive 10,000 visas each (see page 12 for more information). Of the 120,000 allocated to the first three EB preferences, less than half go to workers, with about 54 percent going to spouses and children in 2013.[ii]
Immigration quotas present challenges for employers around the world and, in some cases, have the potential to stymie economic growth. However, other countries prioritize a much higher percentage of permanent visas for economic need than the United States (see Figure 2).
Costly and Long Process
In most cases, a U.S. employer must sponsor a worker for a green card. Generally, an employer must file a labor certification with the Department of Labor (DOL) to test the labor market and certify there are no able, willing, qualified and available U.S. workers for the position. After testing the labor market, the employer must next prove to U.S. Citizenship and Immigration Services (USCIS) that the foreign national is qualified for one of the five EB preference categories. Finally, the foreign national must apply for “adjustment of status” or “consular processing” and prove there are no health, criminal or other reasons why he or she should not be permanently admitted to the United States. This entire process is very costly, and often takes years because demand for green cards far exceeds supply. Moreover, the process moves too slowly for modern business. Only 11 percent of employers responding to a recent survey agreed that the labor market tests required for immigration are done in a reasonable and timely manner.[iii]
Inequality in Wait Times – the Per-Country Limits
The overall EB green card quotas are further broken down into per-country limits by preference category. In general, no country can receive more than 7 percent of the EB preference quota – no matter what that country’s population. With the first three EB preference allocations each receiving 40,000 visas per year, that roughly equates to 2,800 visas per country for both employees and dependents, regardless of whether the worker comes from a populous country like China or India or a less populous country like Romania or Mauritius. The per-country caps often lead to very disparate waits for a green card among equally qualified candidates who were simply born in different countries. Increasingly, workers with longer waits may choose a more predictable career overseas.
“America’s higher education institutions are incubators, not just for minds, but also for innovative companies. On campuses, like the University of Iowa, startups often get their launch — but just as they are picking up speed, the U.S. immigration system puts up a roadblock. The H-1B visas and green cards often needed by their leaders, employees and students to stay and innovate aren’t always available. Fixing the immigration system so these companies can prosper would benefit the entire American innovation ecosystem.”
- Laura C. Prince, Senior Immigration Specialist, The University of Iowa, June 2014
Retaining Talent Educated and Trained in U.S. Universities
The United States will be both the largest and the fastest-growing study-abroad destination for foreign students over the next decade.[iv] In fact, 21 percent of the world’s students who are going abroad for their education already come to the United States.[v] Foreign students are pursuing degrees across the country but are more highly concentrated in certain metro areas (see Figure 3). Two-thirds of foreign students pursuing a bachelor’s or higher degree are in the STEM, business management and marketing fields,[vi] versus 48 percent of students from the United States who are pursuing those fields.[vii] Currently, 45 percent of foreign students extend their visas to work in the same metropolitan area as their college or university and get jobs under the Optional Practical Training (OPT) program.[viii]
It is increasingly challenging for American employers to compete for this limited pool of talent. Many foreign students have greater opportunities abroad today than they did just a decade ago. For instance, highly skilled Chinese workers increasingly choose to work for Chinese employers (see Figure 4). Part of what is driving talent away from the United States is the uncertainty of our immigration system. Students must win an H-1B in the annual lottery or obtain a green card during their limited period of OPT after graduation. Executive action to extend on-the-job training for STEM graduates of U.S. universities through reform of the OPT program may provide some relief. However, the best way to encourage talented foreign nationals to remain in the United States would be to allow those students who have a job offer to apply directly for a green card. This would require Congress to make sufficient green cards available and to permit dual intent for students, and would require the administration to have a timely process to approve these applications.
“Many foreign nationals who receive degrees from American universities would like to stay and contribute to our economy, but current law makes it very difficult to hire and retain them. In the end, our system encourages talented people to leave this country and take their knowledge and skills — much of it learned at public institutions right here in the United States — elsewhere."
- Richard Templeton, Chairman, President and CEO, Texas Instruments, Dallas Morning News, July 2014
Administrative and Congressional Support
The executive action does not provide new green cards, but it should enable many of the professionals caught in the backlogs to file to receive some of the benefits of permanent residence before their priority dates become current. This will enable them to be more easily promoted, change jobs, locations or employers faster, and will allow their dependents to work. While these are valuable benefits, the foreign professionals will remain in a temporary status with inherent uncertainties. It would be much better for our nation to provide the certainty that comes with legal permanent residence and puts them on a path toward citizenship.
In the last Congress, there was bipartisan agreement that the country should provide more green cards to those who have graduated with a U.S. STEM advanced degree and have a U.S. job offer, as provided in both S. 744 and H.R. 2131.
The United States has been extremely successful at attracting and integrating talent from around the world in large part because of our employer-sponsored selection system. Employers are very adept at identifying skill sets and emerging trends. With an economy as large and diverse as ours, ideas raised in past debates that would allow a points-based (merit) system[ix] or a commission,[x] to determine which skills are needed should be viewed with caution. Any attempt to micromanage which foreign-born professionals can be hired is likely to be problematic since employers do not hire people in the aggregate, in general or economy-wide. Employers engage in ongoing recruitment that identifies the best individual for the job, thus enabling the organization to compete better in the domestic and global economy. Only individual employers can possibly know how many professionals they need or which qualifications they require in a given year.
The world’s best and brightest have long contributed to the U.S. economy as job creators and innovators, and it does not make sense for our system to shut them out while other countries welcome them with open arms. Reforming our employment-based green card system to help retain these professionals is critical to our future.
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