Tag Archives: Per country limit

Reforms That Would Help Employer-Sponsored Immigrants

Indians wait longer than other potential employment-based immigrants. That means reforms to America’s employer-sponsored immigration system are likely to help many Indians, as well other skilled professionals. There are several actions Congress or the executive branch can take that will reduce wait times and provide substantial relief to employers and skilled immigrants.

STEM Exemption for Skilled Immigrants

First, Congress can exempt from the green card quotas immigrants with a master’s degree or higher from a U.S. university in a science, technology, engineering or math (STEM) field. This provision has been included in past legislation by Rep. Zoe Lofgren (D-CA) and some others. Congress could expand this measure to go beyond only degrees in those fields or to include individuals who received a Ph.D. in a technical field from abroad. Research has shown those who receive their degree abroad arrive in the United States with substantial human capital, garnered without any U.S. expense, but also may be among the finest in their fields.

Count Only Principals, Not Dependents, Toward Annual Quota

Second, a new law could count only the principal employment-based immigrants, not their dependents, against the 140,000 annual employment-based quota. One reason for the large green card backlogs is that annual H-1B temporary visa quotas count only the principal recipient of an H-1B visa, whereas about half of the 140,000 quota for employment-based immigrant visas is utilized by the dependents (spouse and/or children) of the sponsored immigrant. In addition, Congress could raise the 140,000 annual quota to a higher level.

Utilize Unused Employment-Based Green Cards

Third, lawmakers could provide additional green card relief by including numbers previously allocated by Congress that were not utilized in prior years, such as due to agency processing delays. The State Department estimates there are more than 300,000 unused employment-based green cards allocated in previous years that have never gone to recipients due to administrative issues.

Eliminate the Per Country Limit

Fourth, Congress could eliminate the per country limit on employment-based immigrants. H.R. 3012 would accomplish this feat over a four-year period. The legislation passed the House and, at least for now, is being delayed by a “hold” on the legislation by Senator Charles Grassley (R-IA). Liberalizing rules for employment-based green cards is less controversial than other proposed immigration reforms, as evidenced by the overwhelming vote in the House of Representatives on H.R. 3012.

Allow Filing of Adjustment of Status Before Priority Date

Fifth, allow individuals to file for Adjustment of Status (Form I-485) prior to when his or her immigrant visa become available. Currently, skilled foreign nationals mired in the employment-based green card backlog are often not able to accept promotions or change jobs without the risk of starting their green card applications again. For those waiting a long time the fear of waiting even longer is significant. That would change if early filing of Adjustment of Status were permitted.

If U.S. Citizenship and Immigration Services were to allow individuals waiting for green cards to file for Adjustment of Status even if their priority date has not been reached it would facilitate a more normal existence for those stuck in the green cad backlog. For example a spouse would likely become eligible to work legally in the United States. Also, it is likely the ability to travel in and out of America would become easier, helping people both personally and professionally.

Implementing any or all of the reforms recommended here would aid U.S. employers, immigrants and the American economy, keeping more talent and resources inside the country.

Understanding the Potentially Decades-Long Waits for Indian Professionals in the Most Common Employment-Based Green Card Category

Today, hundreds of thousands of highly skilled foreign nationals, particularly Indians, are languishing in immigration backlogs, waiting years for the chance to obtain permanent residence (also known as a green card). The lack of employment-based green cards harms the competitiveness of U.S. employers and exacts a large personal toll on those who must wait.

Understanding the Indian Green Card Backlog

The long waits for employment-based green cards are caused by two primary factors. First, the 140,000 annual quota is too low to accommodate the number of skilled foreign nationals able to be absorbed successfully in an economy the size of America’s. The 140,000 annual limit includes both the principal and dependent family members. For example, in 2009, dependents utilized more than half of the slots for employment-based visas – 76,935 of 140,903.

In addition to the 140,000 overall annual limit on employment-based green cards, there is also a per country limit, which has a disparate impact on immigrants from countries with a large population of highly educated professionals, particularly India and China. The Immigration and Nationality Act, in Section 202(a), details the per country limit: “[T]he total number of immigrant visas made available to natives of any single foreign state . . . may not exceed 7 percent . . . of the total number of such visas made available under such subsections in that fiscal year.” That would limit employment-based immigrants from one country to approximately 10,000 a year (out of the 140,000 quota), although another provision permits nationals of a country to exceed this ceiling if additional employment-based visas are available. Still, in general, in the most common employment-based category, fewer than 3,000 Indians per year can immigrate.

The Indian Backlog in the Employment-Based Third Preference (EB-3)

The reason Indian nationals will continue to wait a long time for employment-based green cards in the employment-based third preference (EB-3), the most common employment category, is the demand for their labor combined with the per country limit has created a large Indian backlog.

The backlog of Indians in the employment-based third preference could be as large as 210,000. One can estimate the backlog of Indians in the EB-3 category from available data. Earlier in 2010, the U.S. Department of State listed 49,850 Indians on the waiting list in the third preference category with a priority date prior to January 1, 2007. Priority dates normally coincide with the filing of a petition or of labor certification, an early stage in the employment-based green card process. However, that 49,850 figure does not include all the cases at various stages in the process at U.S. Citizenship and Immigration Services with a priority date prior to January 1, 2007. Rounding that figure upwards would get to at least 60,000 (and it could be higher).

To reach another 150,000 Indians for fiscal years 2007 through 2011 requires only about 15,000 individual Indian professionals sponsored for green cards each year for 5 years, with each averaging one dependent, another 15,000, for a total of 30,000 a year for 5 years or 150,000. To illustrate why an estimate of at least 15,000 Indians sponsored for green cards annually in EB-3 is reasonable, consider that 61,739 new H-1B petitions (for initial employment) were approved for Indians in FY 2008, and 33,961 Indians were approved for new H-1B petitions in FY 2009. A large proportion of H-1B visa holders are sponsored for green cards. In addition, employers frequently sponsor for green cards skilled foreign nationals already inside the country in another temporary status, such as L-1 (for intracompany transferees). Attorneys estimate 20 percent of those waiting for employment-based green cards are in a status other than H-1B.

Backlog is Large and Few Are Removed From Backlog Each Year

With no change to current law, an Indian-born professional sponsored today could wait decades for an employment-based green card. Due to the per country limit, generally no more than 2,800 Indians can receive permanent residence in the EB-3 category each year. Indians averaged fewer than 3,000 green cards annually in that category in 2009 and 2010, according to U.S. Citizenship and Immigration Services.

If, as discussed above, the potential backlog in the EB-3 category is 210,000 for Indians (principals and dependents) and 3,000 or fewer Indians can receive permanent residence in the category each year, then that means the theoretical wait for Indian professionals sponsored today in EB-3 is 70 years.

Nobody Will Wait 70 Years for a Green Card

In practice, no one can wait 70 years for a green card. That holds important implications for whether highly skilled foreign nationals from India will be able to stay long-term in the United States without changes to the law. Foreign nationals would have concerns that children included as part of the immigration petition would “age out” and not be allowed to become permanent residents. Moreover, generally speaking, spouses are not able to work. The numbers provide an illustration of how long the waits for permanent residence could be absent action by Congress. Eliminating the per country limit for employment-based green cards and raising the quotas for skilled immigrants will have a significant impact on reducing the time Indians wait for green cards.

Per Country Limit Bill Continues to Attract Attention

H.R. 3012, “The Fairness to High-Skilled Immigrants Act,” is a small bill, anywhere from 1,000 to 2,000 pages shorter than the bills that normally attract a good deal of media attention. Yet H.R. 3012 continues to attract major editorial and news attention.

The bill, which passed the U.S. House of Representatives 389 to 15, would eliminate the per country limit for employment-based immigrants. That would especially help highly skilled individuals from India and China waiting a long time for green cards. The bill would also raise the per country limit from family-sponsored immigrants from 7 to 15 percent.

The Wall Street Journal editorial page used its powerful voice to call for Senate passage of the bill. “For businesses looking to hire advanced-degree candidates or skilled workers, the end of the cap is a good thing,” argued the editorial. “The 7% solution sought to make the American dream accessible to people from every nation. But today’s reality is that American universities are graduating a high number of foreign-born engineers, computer geeks, scientists, mathematicians and nurses that come from a narrow list of countries. The U.S. will be more prosperous by letting graduates who land jobs stay permanently.” (Find the editorial here, registration may be required.)

But the Wall Street Journal noted the legislation is not the ultimate solution to the employment-based green card problem: “The trouble is that the House bill does nothing to address the real problem: 140,000 green cards a year for advanced-degree and skilled workers is far too few. By refusing to increase the number, or to make a special category of green cards automatically available for American university graduates in science, technology, engineering and math, Congress is again delaying reform that could help the lackluster U.S. economy.”

In an editorial titled “Tinkering at Immigration’s Margins,” the Washington Post also weighed in on the bill, but not as favorably as the Wall Street Journal. “A bill passed by the House of Representatives last month would grant a few thousand more green cards annually to Indian and Chinese engineers, software designers and scientists, mostly at the expense of Korean, Filipino and Mexican engineers, software designers and scientists,” wrote the Washington Post. “Since the legislation makes no overall change in the paltry number of green cards available, hundreds of thousands of highly skilled employees already working in the United States on short-term visas will remain backlogged in the system, in many cases waiting for more than a decade to become legal, permanent residents. That’s what passes for immigration reform in Congress these days.”

Not surprisingly, the legislation has also made news in India. The Economic Times of India took a different tact from its American counterparts, focusing on the impact of current U.S. immigration law on the lives of individuals. (Find article here.) It cited the example of an Indian IT (information technology) specialist who came to the United States in 2003 on an H-1B visa. His employer filed for his green card in 2004 in the third preference and he is still waiting. “He is living in the U.S. under annual extensions of H1B, and every time he leaves the US, he has to apply for advance parole with the U.S. Citizenship and Immigration Services, so that he is not stopped from re-entering,” reports the newspaper. “Kumar doesn’t know when his application for green card will become current.”

The article notes it could take another 10 years or more. “Living in such uncertainty is tough. He had started toying with the idea of giving up the green card dream and returning to India. But that was till last week when the U.S. House of Representatives passed ‘The Fairness to High-Skilled Immigrants Act.’”

As of this writing, H.R. 3012 remains held up in the Senate by Senator Charles Grassley (R-IA). No one can be certain whether he intends simply to slow down the bill, force it through the committee process, or see that it never comes up for a vote.

The Prospects Look Good for Bill to Eliminate Per Country Limit

Legislation that will have a positive direct impact on Indian nationals passed the House of Representatives on Tuesday, November 29. The vote was an overwhelming 389 to 15.

HR 3012, “The Fairness for High-Skilled Immigrants Act,” would eliminate the per country limit for employment-based immigrants in a transition over a four-year period. The primary effect of the bill would be to shorten the wait times substantially for highly educated foreign nationals from India and China. The part of the Immigration and Nationality Act that limits nationals of any one country to 7 percent of the total employment-based immigrants in a year will be removed the law books. In addition, by raising the family per country limit from 7 percent to 15 percent it would also help long-waiting family-sponsored immigrants from Mexico and the Philippines.

The House Floor

Speaking in favor of the bill on the House floor, Rep. Jason Chaffetz (R-UT), the chief sponsor of the bill, emphasized that the legislation provided no new green cards. He said the measure was necessary to have the law match the way employers in America hire – based on merit, not country of origin.

House Judiciary Committee Chairman Lamar Smith (R-TX) also spoke in favor of the bill. He emphasized the long wait times, pointing out that some nationals from India in the employment-based third preference (EB-3) had been waiting since 2002 for green cards. In support of the bill, Rep. Smith asked: “Why should American employers who seek green cards for skilled foreign workers have to wait longer just because the workers are from India or China?”

On the Democratic side, Representatives Steve Cohen of Tennessee and Jim Moran of Virginia spoke in favor of the bill. (No one spoke against the bill.) Rep. Moran talked about the importance of skilled immigration generally to jobs and business development in Northern Virginia.

Prospects in the Senate

The passage of the bill in the House gave bill supporters new information about the chances for the legislation to move in the Senate. The New York Times reported, “The bill seemed likely to pass easily in the Senate, said Senator Charles E. Schumer of New York, a leading Democrat on immigration.”

Explaining the implications of the bill, The New York Times noted, “By far, the main beneficiaries will be highly skilled immigrants from India and China, including many with master’s degrees and doctorates in science and engineering. Because they come from populous countries that send many people to work here who have advanced science and technology skills, immigrants from those two nations had been forced by the country limits into lines that were many years long and growing much longer.”

An Associated Press article also quoted Senator Schumer, the chair of subcommittee that handles immigration in the Senate Judiciary Committee, who is favorably disposed toward the bill: “Sen. Charles Schumer, D-N.Y., who heads the Senate Judiciary panel on immigration, said he planned to move the bill as quickly as possible in the Senate, ‘where we expect it to find overwhelming support.’ He said the legislation would ‘remove outdated constraints that prevent us from attracting the kind of innovators who can create job growth in America.’”

An analysis by the National Foundation for American Policy concluded that passing H.R. 3012 would reduce the wait for a newly sponsored foreign national from India in the employment-based third preference (EB-3) to 12 years, far less than the potential wait of several decades under current law. In the employment-based second preference (EB-2), the wait would drop to two or three years, rather than the current 6 years or more for a newly sponsored Indian-born scientist, researcher or engineer sponsored in that category.

Small House Bill on Per Country Limits Could Mean Big Changes

Out of the more than 300 million people residing in the United States, it is likely fewer than 1 percent realize highly skilled foreign nationals endure long waits for green cards. On the other hand, those aware of the long waits likely are personally affected, either because they or a family member are the ones waiting. For those waiting the longest for green cards, on a scale of 1 to 10 the issue is an off the charts “50.”

Sponsored by Rep. Jason Chaffetz (R-UT), HR 3012, “The Fairness for High-Skilled Immigrants Act,” is a small bill by any standards. In recent years, various bills to change U.S. health care or immigration policy have reached lengths of 500 to 1,000 pages. In contrast, H.R. 3012 is barely 6 pages in length. Yet since it may have a legitimate chance of becoming law, it could have a bigger impact on people’s lives than bills 100 times greater in length. (A copy of H.R. 3012 can be found here.)

What Would the Bill Do?

After a transition lasting three years, HR 3012 would eliminate the per country limit for employment-based immigrants. Under the law, employment-based immigration is limited annually to 140,000. In addition, per country caps generally limit the number of employment-based immigrants to 7 percent of the total (except if immigrant visas would otherwise go unused). Because of their large populations, India and China are most negatively affected by these limits. As a result, highly educated Indian and Chinese nationals wait longer for employment-based green cards than their peers from other countries.

Under H.R. 3012, in fiscal years 2012, 2013 and 2014, no more than 85 percent of employment-based immigrant visas could go to nationals of one country. That was designed to prevent Indian nationals, who as a group have been waiting the longest, from potentially using up all the employment-based green cards. Still, Indian and Chinese nationals will be the greatest beneficiaries of the legislation.

The legislation would also increase the per country limit for family-sponsored immigrants to 15 percent (from the current 7 percent). That will primarily benefit nationals from Mexico and the Philippines, many waiting more than a decade in the sibling and adult children categories.

Likely Impact

The bill is likely to shorten the wait times for Indians and Chinese in both the employment-based second preference (EB-2) and employment-based third preference (EB-3). A recent analysis by the National Foundation for American Policy (found here) concluded: “A key part of any solution to reducing wait times is to eliminate the per country limit for employment-based immigrants . . . Eliminating the per country limit would reduce the typical wait for Indians applying today in the EB-3 category from 70 to 12 years. While 12 years is still too long, it would be a welcome reform that would provide green cards for Indian and Chinese professionals waiting the longest in the EB-3 and EB-2 (employment second preference) categories and equalize the wait times in the EB-2 category at about two to three years without regard to country of origin (as opposed to potential waits of 6 years or more for Chinese and Indian nationals in the EB-2 category).”

The House Markup

For a bill to move forward in the legislative process it usually must be “marked up” in committee. In an October 27, 2011 House Judiciary Committee mark-up, H.R. 3012 passed by a voice vote. (That means it had sufficient support that no registered vote was deemed necessary.) Some amendments were ruled out of order and no significant amendments passed to change the core of the bill. The full transcript of the House markup can be found here.

Next Steps

The next step for the legislation is to be voted on by the entire House of Representatives. If the bill passes the House, it would then go to the US Senate. If H.R. 3012 passes the Senate, it would be the first bill to improve high-skill immigration to pass Congress in several years.