In normal operating years, the United States’ immigration system favors family reunification. This favor extends even in the so‐called employment‐based green card categories. The family members of immigrant workers must use employment‐based green cards despite the text of the actual statute and other evidence that strongly suggests that this was not Congress’ intent. This is not unusual as Japan is the only OECD country that has more immigrant workers than immigrant family members, but the difference is larger in the United States than in other countries. Instead of a separate green card category for the spouses and children of workers, those family members get a green card that would otherwise have gone to a skilled worker.
In 2019, 56 percent of employment‐based green cards went to the family members of workers (Figure 1). The other 44 percent went to the workers themselves. That’s the same percentage of employment‐based green cards that went to workers in 2018. It’s undoubtedly true that some of those family members who receive employment‐based green cards are workers and many of them are highly skilled. After all, skilled people tend to marry each other. Family members should be exempted from the employment green card cap altogether or, at a minimum, have a new and separate green card category for themselves.
If family members were exempted from the employment‐based green card’s numerical cap or if there were a separate green card category for them, an additional 77,927 immigrant workers could have earned a green card in 2019 without increasing the numerical cap. President Biden could order this immediately as there is no law mandating that the family‐members of principal employment‐based green card recipients should be counted against the cap.
Over 79 percent of those who received an employment‐based green card in 2019 were already legally living in the United States (Figure 2). They were able to adjust their immigration status from another type of visa, like an H-1B or an F visa, to an employment‐based green card. Exempting some or all of those adjustments of status from the employment‐based green card cap would more than double the number of highly skilled workers who could enter from abroad. More pressingly, this would also empty the wait‐line imposed by the per country caps that especially affect Indian workers on the H-1B visa without increasing the wait for immigrants from other countries. Exempting adjustments of status, rather than tinkering with the cap, is best for two reasons. First, the system would be more open and flexible. Second, it would avoid the debate over which arbitrary number should be the new employment‐based green card cap.
Here are some other exemption options for increasing the number of employment‐based green cards issued annually without raising the overall cap of 140,000:
- Workers could be exempted from the cap if they have a higher level of education, like a graduate degree or a Ph.D.
- A certain number of workers who adjust their status could be exempted in the way the H-1B visa exempts 20,000 graduates of American universities from that numerical cap.
- Workers could be exempted if they show five or more years of legal employment in the United States prior to obtaining their green card.
- Workers could be exempted based on the occupation they intend to enter. This is a problem because in involves the government choosing which occupations are deserving, but so long as it leads to a general increase in the potential numbers of skilled immigrant workers without decreasing them elsewhere, the benefits will outweigh the costs. Exempting healthcare workers from the cap during COVID-19 would have been a good step, for instance.
- Workers could be exempted from the cap if they have waited for 5 years and are otherwise eligible.