The Immigration and Nationality Act (“the Act”) (8 U.S.C. §1152) promulgated that no country could receive more than 7% of the total number of green cards under each employment-based preference visa categories in a fiscal year, in addition to providing for an annual numerical worldwide limitation on permanent residency issuance. The original intent of the provision was to ensure a diverse immigrant pool. However, the per-country cap generated decades-long backlogs for immigrants born in countries like China and India. Legislation aiming to eliminate the per-country cap has been repeatedly introduced to Congress. The 116th Congress passed Fairness for High Skilled Immigrants Act in both chambers but could not reconcile the two chambers’ bills before the expiration of the 116th Congress. A similar EAGLE Act has now been introduced to the 117th Congress and cleared the House Judiciary committee. In this article, I will only explore whether it makes sense to ask immigrants of certain nationalities to wait additional years or even decades for permanent residency.
The Second and Third Categories – Diversity in Workplace?
The first question we should ask is whether a per-country cap prevents the monopolization of immigrant workers from certain countries in the workplace. A Congressional Research Service report explains the processes of most immigrants applying for employment-based green cards. Under §1153 of the Act, 85.8% of the employment-based green cards are evenly allocated to the first three preference categories, EB-1 Priority Workers, EB-2 Professionals holding advanced degrees or Persons of Exceptional Abilities, and EB-3 skilled workers. Except for immigrants applying for EB-1, which is rarely subject to long backlogs because of its highly stringent requirements for an immigrant to qualify, immigrants seeking green cards through the second and third categories usually are already in the United States working on a temporary basis and will have to go through the status adjustment process by filing I-485 with the USCIS, which allows them to change their nonimmigrant visa status, generally H-1b skilled temporary worker, to legal permanent residency. However, to qualify for any of the first three categories of immigrant visas, except for EB-1A, which are reserved for individuals with extraordinary abilities, the immigrant workers are required first to secure sponsorship from qualified US employers. Therefore, an overwhelming majority of the immigrants who apply for EB-1, EB-2, and EB-3 are already working for US employers in the United States, and the per-country ceiling probably cannot serve its intended purpose of maintaining a diverse pool of immigrant workers. The only thing it achieves seems to be delaying the issuance of green cards to immigrants from certain countries, which currently is a 10-year and 3-year delay (after their petitions were approved) for Indian and Chinese workers, respectively, while immigrant workers born in other countries face no wait times.
The Fifth Category
The employment-based fifth category is allocated 7.1% of the total employment-based green card every fiscal year. To qualify for this category, the foreign investor must invest substantial capital (a minimum of $800,000 to $1,100,000) to finance US commercial enterprises and create at least ten employment opportunities. The program also provides special incentives, such as reserved visa, lower minimum capital investment amount, and visa carryover, if such investments are made in higher-risk infrastructure projects or high unemployment or rural areas. Today, Indian and Chinese investors are still the only two nationalities subject to the per-country ceiling and are subject to a 7-year and 3-year delay (after their petitions were approved, assuming no special incentive), respectively. Unlike the ceiling imposed on the first three categories, which might have some perceived benefits on diversity in the workplace, the ceiling imposed on the fifth category probably will not provide any net benefits because the EB-5 investors do not directly work for US employers. The longer waiting time only disincentivizes the most likely groups of affluent investors, who are willing to freeze their assets for years to finance US enterprises, create US job opportunities, and expect no interest payments.
The Problem of the Single-Factor Per-Country Cap
The per-country cap created decades-long backlogs which disadvantaged only a few countries (in different categories). For the second and third preference categories, the per-country cap failed to consider factors such as the populations of international students from different countries and the nationalities of international students who choose to pursue degrees such as computer science, robotics, and engineering, which are highly sought after by US employers due to the insufficient number of US graduates. Chinese and Indian international students make up more than 50% of the total international students, and around 77% of all international students (especially Chinese and Indian students) choose to specialize in STEM. As a result, it is not surprising that Indian and Chinese students will make up the overwhelming majority of immigrant workers in those fields.
Chinese workers under the second and third categories filing this year are facing an estimated nine to ten years of wait, while workers from non-disadvantaged countries face none. The biggest issue here is the waiting time faced by Indian workers. With more than seven hundred thousand Indian waiting on their approved EB-2 and EB-3 petitions and around only eight thousand annual green cards allocated to the country by statute, new petitioners filing this year may face an estimated waiting time of nine decades. When taking death, aging out, and voluntary abandonment into account, Indian petitioners who can or choose to stay in line may still face longer than forty years of wait. A new petitioner would reach the age of seventy, depending on when they applied, before receiving a green card. which is practically prohibiting new petitioners from getting a green card before reaching the age of seventy.
For the fifth category, the per-country cap also failed to consider the realities that India and China are among the fastest-growing countries in the world in terms of populations of high-net-worth investors. The relatively affluent investors from those countries are more likely to consider moving to other countries, among which the United States usually ranks first, for better education, social services, and business opportunities. For Chinese investors, the reasons for leaving may also include escaping and protecting wealth from the authoritarian government and strict foreign exchange control.
Therefore, imposing a blanket cap based solely on nationality might not cause significant problems when this provision of the Act was initially enacted in 1990 when international travels and interactions were not widely available. However, the per-country cap is no longer compatible with the reality that the immigration system is currently facing.
Child Age-out and Family Separation
The brutally long waiting time also creates problems of family separation. Under current law, children are allowed to file an I-485 along with their parents’ approved petition as a derivative if they are under the age of 21 and are unmarried. Before 2002, the child ages out even if he or she filed I-485 before they turned 21 but turned 21 before the petition was approved. In 2002, Congress passed Child Status Protection Act (“CSPA”), intending to prevent the child from aging out while waiting. Under CSPA, the child’s age is calculated as Age at the Time of Visa Availability minus the Pending Time. Pending Time is calculated as the Approval Date minus the Filing date. However, an immigrant subject to backlog cannot file I-485 until their priority date (the date on which they filed the immigration petition) becomes current (meaning immigrants filed before the priority date are eligible to receive green cards in the current fiscal year) on the visa bulletin. CSPA freezes the age of children when USCIS is processing the I-485, but it does not prevent the child from “statutorily” aging while the parents are waiting to become eligible even to file the I-485. Even if the child was one year old (assuming not born in the United States) while the parent’s petition was approved, if the waiting time for the parents is longer than 20 years, the child will age out and become ineligible for filing for immigration with his or her parents.
The proponents and opponents of removing the per-country limitation base their arguments on fairness. The opponents argue that eliminating the cap will give Indian workers and Chinese investors unfair advantages because Indian immigrants will monopolize the second and third preference categories for at least ten years, and Chinese investors will dominate the fifth category for at least three to four years. This is assertion is ill-founded because those workers and investors are currently disadvantaged in the first place. Under current law, workers from non-backlogged countries can become US citizens and get voting rights before workers from backlogged countries become eligible to file for adjustment of status. In some cases, the workers from the backlogged country have lived and worked in the United States for longer than the entire duration of the residency of the workers from non-backlogged countries. A worker who filed his approved petitions back in 2012 is not advantaged in any way if he is allowed to receive permanent residency earlier than another worker from a non-backlogged country who filed his petition in 2022.
While it is true that if the per-country cap is scrapped, the immigrants from countries that were never subject to backlog will now have to wait for extra few years until the backlogged workers and investors are cleared up. After that, the entire system transitions into a true first-come-first-serve one. It is also true that the low statutory limitation on total employment-based green cards contributes to the backlog. However, increasing the statutory limitation is unlikely in the foreseeable future due to the two major parties’ different views on immigrant workers. Some have also suggested not counting derivative petitions of dependent spouses and children against the annual numerical limitation on both worldwide and per-country basis because the Act’s plain language never explicitly imposed any numerical limitation on them.
As discussed above, the size of the backlog pool as it currently stands already requires almost a decade to be absorbed, assuming the per-country cap is lifted, based on the current annual worldwide limit under certain employment-based categories, specifically, EB-2 and EB-3 for Indian workers and EB-5 for Chinese Investors. If leaving the system “as is,” the backlog pool of certain countries may grow into sizes that even an increased worldwide numerical limitation without per-country cap cannot absorb even in decades. The problem we are facing now is if the unreasonable backlog is practically making permanent residency impossible for certain immigrants solely because of their countries of birth, whether we should wait until the two major parties on the Capitol miraculously reach a consensus on immigration reform soon or advocate for starting with eliminating the per-country cap to reduce the size of the backlog pools of the most affected counties while pushing for other measures to limit the waiting time to a reasonable length for all immigrants. It is my opinion that we should choose the latter.
About the Author: Ray Fang is a second-year law student at Cornell Law Student. Ray’s family experienced a lengthy wait and had to resort to litigation to get their immigration case adjudicated and approved.
Suggested Citation: Ray Fang, Decades-long waits for green card if you were born in the “wrong” country, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (Oct. 27, 2022), http://jlpp.org/blogzine/decades-long-waits-for-green-card-if-you-were-born-in-the-wrong-country.