High-skilled foreign nationals, including doctors and engineers, rally on Capitol Hill in … [+]
Without a change in immigration law, it will be sometime in the year 2216—195 years from now—when the last person born in India waiting today in the employment-based immigrant backlog is expected to receive a green card. Barring advances in human longevity, businesses and high-skilled foreign nationals must rely on Congress to solve this problem and enact reasonable policies to welcome highly skilled people who want to become Americans.
The Scope of the Problem: H-1B and L-1 (intracompany transferee) are temporary statuses, meaning if someone wishes to remain in the United States, they must obtain an employment-based immigrant visa (or green card) that grants permanent residence. However, there is far greater demand for high-skilled individuals than the limited number of employment-based green cards allotted by Congress.
Since 1990, when Congress set the annual limit on employment-based immigrants at 140,000 (and 65,000 H-1B temporary visas), changes in technology have accelerated the demand for high-skilled technical labor. Congress established the current employment-based limits before the internet became a part of daily life. It also predates the iPhone, the iPad, YouTube, e-commerce, Netflix, Google, cloud computing and thousands of innovative companies and technologies that have come into existence and fueled the demand for high-skilled labor.
U.S. businesses would still need more scientists and engineers to grow and innovate even if the number of Americans earning degrees in science and engineering had exploded—and it hasn’t.
Between 1995 and 2015, full-time U.S. graduate students in electrical engineering decreased by 17%. The number of full-time U.S. graduate students in computer science increased by 45% from 1995 to 2015, while international graduate students increased by over 480%. (H-1B visa fees paid by employers have funded approximately 100,000 college scholarships for U.S. students in science and engineering.)
As of March 2020, the backlog in EB-1, EB-2 and EB-3—the employment-based first, second and third preferences—was 915,497, according to the Congressional Research Service (CRS).
Without Congressional action, notes CRS, the problem will grow worse: “The total backlog for all three categories would increase from an estimated 915,497 individuals currently to an estimated 2,195,795 individuals by FY 2030.”
Let that number sink in: Within a decade, more than 2 million people will be waiting in line, most for many years or even decades, for employment-based green cards. And there are indications this underestimates the problem.
Table 1 shows that in FY 2018 only about 4,500 Indians obtained permanent residence in the employment-based second preference and fewer than 6,000 received green cards in the employment-based third preference. (The National Foundation for American Policy obtained the data via a Freedom of Information Act request.)
CRS estimates the annual demand for employment-based green cards in the three preference categories is 262,376 (including dependents). This is based on petitions U.S. Citizenship and Immigration Services (USCIS) approved in FY 2018. CRS explains the backlog grew because there is a “current limit of 120,120 green cards for the three employment-based immigration categories.”
Another problem is that Congress established a per-country limit of 7% for each country that burdens mainly potential employment-based immigrants from India but also affects people born in China and the Philippines. The law, in effect, gives the same number of green cards for employment to India as it does Iceland.
In the employment-based second preference (EB-2): “Under current law, and owing to a limited number of green card issuances, the current backlog of 568,414 Indian nationals would require an estimated 195 years to disappear,” according to CRS. David Bier of the Cato Institute predicts “about 186,038 Indian immigrants will die . . . before they receive green cards even if they could remain in line forever.”
“By FY 2030, [the] estimated wait time would more than double,” according to CRS. “Under S. 386, the estimated wait time for newly approved EB-2 petition holders would shrink to 17 years, and in FY 2030, the wait time would be 37 years, the same as for all other foreign nationals.”
S. 386 was a bill in the last Congress sponsored by Sen. Mike Lee (R-UT) that would have eliminated the per-country limit for employment-based immigrants. Rep. Zoe Lofgren (D-CA) wrote H.R. 1044 with Rep. Ken Buck (R-CO) and it passed the House in July 2019. The companion bill, S. 386, was blocked in the Senate for more than a year. It became a Christmas tree for extraneous immigration provisions. The Senate finally approved S. 386 near the end of the session but the House found the provisions to be objectionable and it did not become law. The bill would not have increased the number of employment-based green cards but would have reduced the wait times for those waiting the longest for permanent residence, particularly professionals from India.
Without any change in the law, CRS predicts: “Currently, new Indian beneficiaries entering the EB-3 [employment-based third preference] backlog can expect to wait 27 years before receiving a green card.” (The wait time would be much longer in the EB-2 category.)
Scientists and engineers waiting for their green cards may see their children who have lived in the United States for years be forced to leave the country when they “age out” of their place on a mother or father’s immigration application when reaching 21 years old. USCIS policies during the Trump administration caused many spouses of H-1B visa holders waiting for green cards to lose their work authorization due to long processing delays.
New Immigration Bill Would End the Employment-Based Backlog: The U.S. Citizenship Act, developed by the Biden administration, would eliminate the employment-based backlog within 10 years through various provisions, according to a National Foundation for American Policy (NFAP) analysis.
First, the bill would no longer count spouses and children toward the annual limit, which would approximately double the annual number of employment-based green cards. Second, the legislation increases the annual limit for family-sponsored immigrants and allows unused numbers from the family categories to be used by the employment categories. That means once the family backlog is eliminated, which NFAP predicts could happen within 5 or 6 years, backlog reduction in the employment-based categories would accelerate.
Third, the bill eliminates the per-country limit. Fourth, the legislation allows unused green cards from earlier years to be redirected to reduce family and employment backlogs.
The bill also contains a provision, which NFAP has recommended, to allow any individuals who wait at least 10 years with an approved immigrant petition to receive permanent residence without numerical limit. If Congress passed only this reform, it would help many people and bring certainty to otherwise interminable waits for many employment-based immigrants.
Related to the backlog, in its final days, the Trump administration published a final rule designed to price employment-based immigrants and H-1B visa holders out of the U.S. labor market. The regulation would boost required wages 23% to 41% depending on the occupation, according to an NFAP study. The regulation could block people waiting for green cards if the new required salary is too high for an employer to retain them in H-1B status. (Individuals can be extended in H-1B status while waiting for an employment-based green card.)
If the Biden administration keeps the rule, it would be a significant victory for former White House adviser Stephen Miller and opponents of immigration.
Numerous studies and private wage surveys show that there is no evidence high-skilled foreign nationals are paid less than comparable U.S. professionals. If employers were forced to pay high-skilled immigrants 41% more than comparable U.S. workers, one would expect critics would still claim the immigrants were paid less because that is typically the only argument put forward against high-skilled foreign nationals who work in America. Members of Congress are repeatedly told to believe the only value someone born in another country offers a U.S. business or the U.S. economy is a willingness to work for less money.
If we have learned one thing from the pandemic, it is how valuable immigrants are to America. Immigrants play key roles in the two companies responsible for the Covid-19 vaccines Americans are receiving to protect their lives. Moderna’s leaders, two cofounders and critical scientific personnel are immigrants, as are the chief executive (and chief science officer) of Pfizer and a key scientist (Katalin Karikó) who made a crucial breakthrough on messenger RNA,” as noted in a December 2020 article. Even the founders of Pfizer were immigrants.
“We have blown the opportunity to maximize the incredible high-skilled immigrants in this country,” said Sen. Kevin Cramer (R-ND) at a recent hearing. “The backlog of green cards is immoral to me.” Will this be the year moral outrage and economic sense lead to a solution for employment-based immigrants?
I am the executive director of the National Foundation for American Policy, a non-partisan public policy research organization focusing on trade, immigration and related