If your organization employs highly skilled foreign nationals, then you have probably heard grumblings over the past few weeks regarding the recent retrogression in employment-based immigrant visa cutoff dates for advanced degree or exceptional ability China-mainland and India-born workers. If the term “retrogression” is not part of your lexicon, please allow us to bring you up to speed – supply and demand.
America’s immigration system limits the number of employment-based immigrant visas available each fiscal year at approximately 140,000; this covers the sponsored worker and family members. The 140,000 allocation is divided among five preference categories corresponding to the nature of employment and skills of the foreign worker. With an apportionment of 40,040 plus any unused first-preference immigrant visas, the second preference is reserved for advanced-degree professionals and foreign nationals of exceptional ability in the sciences, arts or business.
The law further caps the number of immigrant visas assignable to natives of any single country at seven percent of the United States’ worldwide total. This limitation has resulted in disparate wait times for many highly skilled foreign nationals, with China-mainland and India-born workers being most impacted.
At the beginning of the permanent residence (i.e., green card) process, a foreign national obtains a “priority date,” which holds the individual’s place in line for an immigrant visa. The Department of State (DOS) manages immigrant visa numbers, publishing a monthly Visa Bulletin organized by preference categories and foreign national country of birth. A category is listed as “current” if there is no immigrant visa backlog. Where immigrant visa demand exceeds supply, a category is considered “oversubscribed” and a cutoff for immigrant visas is established based on foreign national priority dates. If applications for an immigrant visa number exceed a category’s monthly allocation, the category is “unavailable.”
“Retrogression” is when immigrant visa availability for a particular category is exceeded by the number of qualifying foreign nationals who have applied, prompting Visa Bulletin priority dates to be adjusted to an earlier point in time than previously indicated. The May 2012 Visa Bulletin (published early April 2012) saw second-preference China-mainland and India immigrant visa availability retrogress by nearly three years from May 1, 2010 to August 15, 2007.
Many factors contribute to retrogression. First, U.S. Citizenship and Immigration Services (USCIS) utilizes approximately 85 percent of employment-based immigrant visas through the adjustment of status process but seldom furnishes complete and accurate processing information to the DOS, which makes immigrant visa demand difficult to predict. Lengthy queues for Chinese and Indian foreign nationals add to this challenge because workers advance in their careers, move to new employers, upgrade to different preference categories, secure permanent residence through other avenues, or abandon the permanent residence process altogether. Moreover, as unused immigrant visas cannot be carried over to future fiscal years, the Visa Bulletin often lists aggressive priority dates in an effort to ensure immigrant visas are not wasted.
As lengthy backlogs so common in the third preference category have now become a fixture for advanced degree professionals and foreign nationals of exceptional ability, clearly a fix is in order. For foreign nationals from China-mainland and India – countries with populations each exceeding one billion – immigrant visa availability has become a wait spanning several decades. It is difficult to see how America benefits from these delays, especially when employers have already passed the labor-market test to sponsor these workers.
The Fairness for High Skilled Immigrants Act proposes a merit-based, first-in-line system for issuing employment-based immigrant visas that would eliminate country-specific quotas by 2015. This Bill would allow a large number of Chinese and Indian nationals to immediately apply for permanent residence while reducing immigrant visa numbers for foreign nationals of other countries, eventually resulting in uniform waiting periods for each preference category. After sailing through the House of Representatives by a 389 to 15 margin, the Bill has stalled in the Senate due to amendments tacked on by Senator Charles Grassley, who firmly opposes its passage.
While this Act rightly acknowledges America’s need to attract the highly skilled workers who drive innovation, it does not resolve the greater problem of supply and demand. Congress could easily alleviate backlogs for skilled workers by increasing the annual number of employment-based immigrant visas for the first time since 1990. It could also exempt spouses and dependents from counting toward annual limitations. Better yet, why not create an exemption for foreign nationals with advanced degrees in critical science, technology, engineering or mathematics disciplines from United States universities? While American businesses – and most economists – would eagerly welcome these reforms, Congress currently lacks the political will.
At a time when many Chinese and Indian skilled workers recently had renewed optimism in their quest for permanent residence, this most recent retrogression is nothing short of a major setback. Even more troubling is the long-term impact it may have on the American economy. If our immigration system continues to make permanent residence a decades-long struggle for some of our most essential and talented workers, we cannot take for granted that these individuals will continue to pursue careers in the United States. America can and must do better.
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. Paul Devendorf, an Associate at the firm, and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.