Fairness for High Skilled Immigrants Act: Wait Times and Green Card Grants

In an overwhelming vote, the House of Representatives passed the Fairness for High Skilled Immigrants, a bill to phase out the per country limits on employment-based immigrant visas (or green cards), which lead to legal permanent resident status. The Senate is working on its own version of the legislation. The per country limits provide that no single nation can receive more than 7 percent of the total green cards issued in a year (unless they would otherwise go unused).

Because Congress has failed to authorize enough green cards for workers hired by U.S. employers, a large backlog of applicants has developed. The largest employment-based backlog is in the second and third preference categories for employees of U.S. businesses with at least bachelor’s degree (i.e. EB2/EB3). As of May 2018, about 586,439 workers and their families were waiting for EB2/EB3 green cards, based on figures from U.S. Citizenship and Immigration Services. This number includes an estimate of the spouses and children who are waiting with the workers.

The per country limits, however, cause this backlog to develop unevenly. They result in an inequity between the proportion of applicants from certain countries and the proportion of green cards that nationals of those countries receive. Figure 1 shows the estimated number of new applicants in 2018, the number of green cards issued by country of origin, and the backlog by country of origin. The fact that employers requested more than half of the green cards for Indians but Indians received just 13 percent of those issued has caused the backlog to develop almost exclusively for Indians.

The Indian backlog means that they carry almost the entire burden of the green card shortage. While they wait in line, nationals of other countries get to cut to the front of the line. Going forward, new EB2/EB3 applicants from India in 2019 will face astronomical wait times. At the current pace, it will take 49 years to process the Indian backlog—if people stick it out that long—and nearly 50,000 Indians would die before then. During that entire half century, other immigrants would keep bypassing Indians with almost no wait at all. Table 1 shows the projected wait times by country based on the current rate at which green cards are issued. 

The Fairness for High Skilled Immigrants Act would phase out the per country limits for all employment-based immigrants, so that immigrants would receive green cards on a first-come, first-served basis without regard to birthplace. After a period of adjustment, the share of green cards that each nationality receives will equal the share of applicants from each country. But because such a large backlog of Indians, it will take several years to work through the backlog.

The House bill provides a three-year period in which new non-Indian, non-Chinese applicants would be guaranteed 15 percent, 10 percent, and 10 percent of the green cards issued in each year, respectively. Of the remainder during those years, Indians could use no more than 85 percent, leaving Chinese with the rest. Furthermore, any applicant who already had an approved employer petition prior to the bill’s enactment would be guaranteed to receive their green card not any later than when they would have otherwise received it.

Figure 2 projects how green cards will be awarded under the House version of the bill (H.R. 1044). The House bill would require a little less than 7 years to process the existing backlog of applicants and move onto new applicants. In addition to deaths (3,025), this estimate takes into account the rate of abandoned applications (about 4.75 percent annually) and the number of children (about 14,300) who will lose eligibility by turning 21 (i.e. aging out). Indians and Chinese will receive all green cards for just three years before the rest of the world returns in 2026. The distribution in 2027 will reflect the proportion of applicants applying in 2018-19 from each country. No one will receive any preference based on their birth country.

The Senate bill temporarily creates a new employment-based category for 7,200 immigrants working in “shortage occupations”—currently, the Department of Labor defines these as nurses and physical therapists—from 2020 to 2027. Sens. Rand Paul (R-KY) and David Perdue (R-GA) requested this change because the nursing industry can only access foreign workers by hiring them from abroad under a green card, while other industries can use temporary work visas like the H-1B.

Although it solves the nursing problem, the Senate bill will take another year to process the existing backlog—a little less than 8 years. Figure 3 shows the distribution of green cards under the most recent Senate version of the bill.

In this version, the non-Chinese, non-Indians, non-shortage workers (i.e. “other” in Figure 3) would not receive any green cards for four years. Opponents of the legislation claim that this is unfair, yet new Indian applicants who applied in 2018-19 will not receive any green cards under the bill for almost eight years, and if the law isn’t passed, then they would face a half a century wait (ultimately, nearly half would give up before then).

The time it takes to process the backlog—7 or 8 years—will roughly approximate the processing time for new applicants from China and India in 2020. The rest of the world’s applicants will still receive a preference under the legislation for 2020 because they have a special set-aside for the first three years, guaranteeing their applicants some green cards even though they applied after Indians and Chinese. New Chinese applicants will receive green cards a little bit later than otherwise, but Chinese applicants in the backlog will receive them slightly faster on average due to the increase in green cards for them from 2020 to 2022 as shown in Figures 2 and 3.

The Fairness for High Skilled Immigrants Act will clearly leave an immigration system that is still broken. Congress authorizes far too few green cards. It should not count immigrant workers’ spouses and children against the cap for workers. The green card quota should be updated to account for economic growth since it was created (roughly double). It should exempt shortage occupations from the cap entirely. Sen. Rand Paul’s BELIEVE Act would fix those issues. Ultimately, the bill will not fix the entire immigration system, but it would accomplish its purpose: making the system fairer.