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…