On November 29, the U.S. House of Representatives overwhelmingly passed H.R. 3012, the Fairness for High-Skilled Workers Act, a bill that would change the way employment-based green cards are allocated by eliminating country-specific quotas. Specifically, the bill seeks to equalize the waiting times for employment-based permanent residence, where backlogs can be many years long. Passage of H.R. 3012 would be welcome news for Indian and Chinese professionals, who would see their multi-year waits shortened considerably, but less welcome for nationals of other countries, who could see their waiting periods get longer.
Though the bill is an attempt to inject some equity into the employment-based permanent residence system, it sidesteps the most critical problem: an insufficient green card quota that has remained at the same level for decades.
Under present law, roughly 140,000 employment-based immigrant visas are available each year, and the total includes family members of the principal employee being sponsored. This total is subdivided among five employment-based green card preference categories ranging in priority from foreign nationals of extraordinary ability (EB-1), advanced-degree professionals and foreign nationals of exceptional ability (EB-2), professionals, skilled workers and unskilled workers (EB-4), special immigrants such as religious workers (EB-4) and immigrant investors (EB-5).
No more than seven percent of the total quota (9,800) can be allocated to the natives of any single country. If there are more green card applications than immigrant visa numbers in a preference category for a specific country, the State Department determines a cut-off date for applications. A foreign national whose priority date (the date a green card case is initiated on his or her behalf) is earlier than the cut-off date for his or her preference category and country of birth is eligible to apply for adjustment of status or an immigrant visa. A foreign national whose priority date is later than the cut-off must wait in a green card queue until more immigrant visas become available for his or her country of birth and preference category.
Under the current structure, green card waiting periods vary drastically depending on a foreign national's preference category and country of birth. For example, a French EB-3 professional currently has about a six-year wait for an immigrant visa, while an Indian professional at the same level stands to wait ten years or more. If H.R. 3012 is enacted, the seven percent limit per country would be eliminated by 2015 and instead of separate queues for each country in each category, there would eventually be a single queue for each employment-based green card category.
Until 2015, per-country limits on employment-based green cards would still exist, but a certain number of immigrant visas would be allocated to the backlogged countries - India and China - and away from other countries. As a result, priority dates for Indian and Chinese nationals would immediately advance substantially in several preference categories. However, for other countries, waiting periods would develop where there had been none or lengthen for categories that are already backlogged. By 2015, there would be a single uniform waiting period for all countries in each category.
If H.R. 3012 is signed into law, a large number of foreign employees born in India or China will become immediately eligible to file green card applications, after waiting many years to become eligible to do so. At the same time, those born in other countries face the possibility of future backlogs as the government transitions to the new green card allocation system. Employers planning to sponsor foreign nationals born in countries other than India or China would need to file labor certifications and immigrant worker petitions as early as possible to secure the most favorable priority dates.
Even if the H.R. 3012 were passed, backlogs would still exist in some preference categories after the transition period. Nothing will alleviate that problem except an influx of additional quota numbers into the employment-based green card system and/or an exemption from the quota of family members, two options that Congress has declined to adopt.
Several bills now pending in Congress would relieve some of the pressure on the employment-based green card quota without adding new numbers, and work effectively in tandem with H.R. 3012. These bills would create an exemption from the quota for foreign nationals who have earned an advanced degree in science, technology, engineering or math (STEM) from U.S. universities. In addition to easing demand on the employment-based quota, these proposals would speed the permanent residence path for holders of U.S. advanced STEM degrees, among the most sought-after workers in the world.
But as all of us who follow immigration policy have come to expect, no immigration legislation has a smooth path to passage, even one that simply proposes a zero-sum solution to green card backlogs. H.R. 3012 is now pending in the Senate, where Charles Grassley (R-IA) has already raised objections. Sen. Grassley, a longtime critic of employment-based immigration programs, argues that the bill does nothing to protect U.S. workers, and he could seek to attach immigration restrictions to it. If he is successful, Sen. Grassley would perpetuate an even more disadvantageous zero-sum game: forbidding any benefit to the immigration system to progress without an equal and opposite burden.
Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at firstname.lastname@example.org. Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.