Lawmakers Propose Eliminating National Caps on Work-Based Green Cards

Bill would reduce wait for permanent residence primarily for Indian workers, increase wait times for others

Roy Maurer By Roy Maurer March 8, 2019
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​Legislation meant to clear backlogs for employment-based green cards would expedite the flow of high-skilled workers from countries such as India and China who face inordinately long waits, but it could lengthen wait times for immigrant workers from other countries.

Companion bills have been put forward by Reps. Zoe Lofgren, D-Calif., and Ken Buck, R-Colo., in the House and Sens. Kamala Harris, D-Calif., and Mike Lee, R-Utah in the Senate, along with dozens of co-sponsors. The bills would remove per-country limits on employment-based green cards, which allow foreign nationals to live and work permanently in the U.S.

Supporters for the proposals include the U.S. Chamber of Commerce, the National Association of Manufacturers, the Society for Human Resource Management and employers in the technology industry, which relies on the H-1B visa workers who adjust to employment-based green cards—many of whom are currently stuck in the backlogs.

"Year after year, I have met with constituents who come here legally on work visas from India or China and face decades-long wait times for obtaining permanent residence," Buck said. "If we want to ensure America remains globally competitive, we need to ease the backlogs and leverage the talent and expertise of our high-skilled immigrants who help strengthen the U.S. economy and fill knowledge gaps in certain fields."

The proposed legislation is "a small but critical step in the right direction," said Scott Corley, executive director of Compete America, a coalition representing corporations, universities and trade associations advocating for high-skilled immigration reforms. The proposal "offers a sensible reform to address per-country-cap backlog issues for permanently employed foreign professionals already working in the United States who have fully approved green card petitions. These are not new immigrants; they are part of our workforce today," he said.

But others contend that removing the per-country ceiling would eventually create new backlogs for all employment-based immigrants seeking green cards.

"It remains to be seen whether this proposal will ultimately result in a net positive for employers and workers or whether it just spreads the burden across the board," said Karine Wenger, corporate immigration counsel in the San Diego office of global immigration law firm Fragomen. "Without raising the total number of green cards available, it's likely that this just reshuffles the backlog."

How Employment-Based Green Cards Are Allocated

Category
Numerical Limit​
​EB-1: People with extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; and certain multinational executives and managers.
​28.6% of worldwide limit (40,040) plus unused EB-4 and EB-5.
EB-2: Professionals holding advanced degrees or people with exceptional abilities in the sciences, arts or business.
​28.6% of worldwide limit plus unused EB-1.
EB-3: Skilled workers with at least two years training or experience; professionals with baccalaureate degrees; and unskilled workers.
​28.6% of worldwide limit plus unused EB-1 or EB-2; unskilled “other workers” limited to 10,000.
EB-4: “Special immigrants,” including religious workers, certain employees of the U.S. government abroad and others.
​7.1% of worldwide limit (9,940); religious workers limited to 5,000.
​EB-5: Immigrant investors who invest at least $1 million ($500,000 in rural areas or areas of high unemployment) in a new commercial enterprise that creates at least 10 new jobs.
​7.1% of worldwide limit; 3,000 minimum reserved for investors in rural or high unemployment areas.

[SHRM members-only HR Q&A: When are employers required to update or reverify I-9 documents?]

Indian Tech Workers Would Benefit Most

Immigration experts say that the proposal would clear the wait list in less than a decade, resulting in happier workers and reduced turnover, especially in the tech industry.

William Kandel, an immigration policy analyst with the Congressional Research Service in Washington, D.C., explained that more than 900,000 foreign nationals who have been approved for employment-based green cards are currently waiting for a limited number of visas. Each country gets 7 percent of the 140,000 employment-based green cards issued per year. This limitation was imposed to prevent one country or a handful of countries from dominating the flow of employment-based immigration to the United States.

But "per-country limits and low annual limits—about half of which go to dependents—combine to create long wait times for immigrants, with waits for Indians the longest," said Stuart Anderson, executive director of the National Foundation for American Policy, a public-policy research organization based in Arlington, Va. "According to the Department of State's February 2019 Visa Bulletin, Indians who filed green card applications in the employment-based second preference [for workers with advanced degrees] as far back as April 2009 are just now becoming eligible to receive a green card."

While no one knows with certainty how long workers will have to wait for permanent residency in the U.S., David Bier, an immigration policy analyst at the Cato Institute in Washington, D.C., estimated that Indian nationals with bachelor's degrees could face a 17-year wait for an employment-based green card, while those with advanced degrees could theoretically be looking at 151 years (that's not a typo). Indian immigrants make up about 90 percent of the wait list, according to Bier. Workers from China and the Philippines also face backlogs, although not to the same extent.

The bill "makes one simple, sensible reform: It makes the distribution of green cards first come, first served within each category of employment-based immigration," Corley said. "This fix is necessary because the current system has resulted in deeply imbalanced and unfair outcomes—with the majority of countries in the world facing no backlogs, while others with the same kinds of education, skills and jobs are trapped in generations-long backlogs."

The bill is welcome news for those employers with a high percentage of Indian and Chinese foreign nationals waiting for their green cards, Wenger said. "People getting their green cards quicker means not having to worry about extending their H-1Bs over and over again in an atmosphere that has gotten more challenging."

Removing the Caps Would Create New Problems

Not everyone is satisfied with the proposed changes. Per-country caps were intended to prevent nationals from countries with large populations like India and China from getting the large majority of green cards each year. Because there are so many Indian nationals waiting for green cards, eliminating the ceiling could conceivably mean that green cards would almost entirely go to Indians for years to come.

To alleviate that concern, at least upfront, the legislation guarantees workers from other countries approved for employment-based green cards before the bill's enactment would receive them on time as promised, as well as a three-year transition period that reserves green cards for immigrants from other countries while the Indian backlog is reduced. "It's a tentative phase-in process, so originally it won't be all or nothing," Wenger said. "But that only lasts for three years, which makes you wonder if that would be sufficient."

Because the number of employment-based green cards is limited, and the number of applicants exceeds the number of green cards available, new backlogs will likely develop in the future for workers from all parts of the world.

Foreign nationals who are not from India or China would have to face longer waits than they have in the past, making recruiting foreign talent from those other countries more difficult, said Forrest Read, an attorney in the Raleigh, N.C., office of Jackson Lewis. The average wait time for all employment-based workers has been estimated to equalize at about seven years, he said.

If that were the case, companies accustomed to hiring workers directly from abroad wouldn't have that option in the future, Wenger said. "Some employers may have relied on countries where the green card was current [meaning there isn't any wait time], recruited directly from those countries and bypassed the difficulties of the H-1B lottery," she said. "Workers in countries used to being current will all of a sudden find themselves in a backlog."

Read added that potential employees locked out of the H-1B lottery will no longer have the green card option immediately available. That option is currently a viable possibility for skilled workers not from India or China.

Another concern is that if all countries have backlogs of several years in the future, fewer employers may sponsor workers for green cards, putting more strain on visa programs like the H-1B. Conversely, "shorter wait times for legal permanent resident status might actually incentivize greater numbers of nationals from India, China and the Philippines to seek employment-based legal permanent resident status," Kandel said.

Read said that longer wait times for all countries would make it "virtually impossible" for any foreign national to receive an employment-based green card without first being in the United States in a temporary status like an H-1B. Because of that, people in occupations not eligible for H-1Bs would have less of a chance of receiving employment-based green cards, and more workers with H-1Bs would have to undergo more rounds of visa extensions.

"The health care industry is concerned because foreign nurses, generally not from India or China, are not eligible for H-1B visas and have to get green cards before they can work in the U.S.," Read said.

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