100,000 Children in the Employment‐​Based Green Card Backlog at Risk of Family Separation

Employment‐​based immigrants from India and China put up with a lot of bad governmental policies. Despite having wage offers far higher—on average—than immigrants from the rest of the world, these highly skilled immigrants face wait times for green cards (i.e., permanent residence) of a decade for Chinese to 8 decades for Indians, while nationals of other countries hardly wait at all. This is a consequence of the country caps that limit immigrants of any single birthplace to no more than 7 percent of the green card cap unless they would otherwise go unused.

This means that because nearly all of them are already here working on an H-1B visa, skilled workers from India and China are constantly fearing the prospect of being forced to leave the country if they lose their jobs. They are less likely to get promotions and have trouble changing jobs as a result of the stilted immigration rules for temporary workers. They cannot start businesses, and they must pay thousands of dollars to attorneys and the government to obtain repeated renewals of status. Each administration changes the rules for them, causing additional uncertainty.

But the worst indignity brought upon these talented future Americans is how the system treats their children. Every “minor” child of a temporary H-1B worker is entitled to H-4 temporary status. They are also entitled to a green card if their employer sponsors the worker for one. But the moment that the child turns 21, the government cancels their H-4 status and boots them from the green card queue. They must choose either leaving the country or finding another temporary status to jump to, such as a student visa.

These young people must fight to remain in the country that they have grown up in, graduated from high school in, and have built their lives in. Even if they obtain a student visa, they must then try to win an H-1B visa through the lottery system, where staying with their family and their adopted country is up to random chance. Of course, even if they get the H-1B visa, they are thrown to the back of a massive eight‐​decade long wait for green cards, even though they had already waited in line for a decade or longer with their parents.

High‐​skilled immigrants will suffer many indignities to stay in the United States—including nationality‐​based discrimination, closed job opportunities, unnecessary fees, and much else. But many will not tolerate this forced separation. I’ve spoken to hundreds of H-1B families and every single one has spoken of the stress and anxiety of the thought of having to choose between America and their children. EB-5 investors who are waiting for visas abroad face the choice of whether to come to the United States at all without their children.

About one quarter of the employment‐​based immigrants who receive green cards are children. Based on this fact, Figure 1 estimates the composition of the green card backlog in April 2020, showing that about 253,293 children were waiting for green cards with their parents in 2020. That means a quarter of a million children are fearing the prospect of aging out of green card eligibility and status in the United States.

Of the children in the green card backlog, there are 157,064 from India, another 49,835 from China, and 46,394 from other countries. Figure 2 shows that Indian children represent 62 percent of the child green card backlog, Chinese 20 percent, and others 18 percent. Again, the fact that Chinese and Indians dominate the backlog is the result of the country caps where green cards are not issued proportionally to the number of pending applicants in each country but rather limited arbitrarily at 7 percent per nation of birth.

Figure 3 breaks down the child backlog by country and category as of April 2020. Almost 87 percent of the child backlog from India is in the EB-2 and EB-3 green card categories for employer‐​sponsored immigrants with master’s and bachelor’s degrees, while nearly 57 percent of the Chinese backlog are in the EB-5 investor category. Because nearly all EB-5 investors come from abroad and are not already working in the United States like those in the EB-2 and EB-3 categories, aging out for them would mean never coming to the United States at all. These investor families would have to decide whether to keep the family together or leave their children and immigrate.

Table 1 shows how many immigrant children will age out in each category by country of origin at current rates of green card issuances (accounting for the 2021 increase from spillover of unused green cards from family‐​based categories). About 104,000 children will age out of eligibility over the next two decades. This is about 40 percent of the entire green card child backlog. More than four in five of the aging out children will come from India—a higher proportion than even their current share of the backlog (62 percent).

Congress should entirely repeal the employment‐​based green card limits, both the country caps based on birthplace and the category limits overall. But even if Congress does nothing else, it should stop the monumental injustice of aging out. The vast majority of these children grew up in America. This is their home. They should get to stay—just like the Dreamers in the DACA program should get to stay. This injustice harms America as well. More and more talented immigrants are going to Canada, Australia, and other countries because they treat their immigrants well: a reasonable and timely path to citizenship for them and their families. It’s the least they should expect.

Congress has no reason to continue to exclude legal dreamers from its paths to citizenship in bills like the Dream Act that provide for immigrants brought to the United States as children—essentially requiring a violation of the law to obtain citizenship. It’s senseless and unjust. Congress can and should do better.