Senators Dick Durbin (D‑IL) and Patrick Leahy (D‑VT) introduced the RELIEF Act this week. The legislation is their alternative to the Fairness for High Skilled Immigrants Act, which passed the House this year. Both bills would phase out the employment‐based per‐country limits that prevent any nationality from using more than 7 percent of the green cards granting permanent residence in any given year (unless they otherwise would go unused). The per‐country limits create disproportionately long backlogs for Indian nationals. Both bills also double the family‐sponsored per‐country caps from 7 to 15 percent.
The key difference is that the RELIEF Act would also increase the total number of green cards, while the Fairness for High Skilled Immigrants Act contains no change in the amounts. It is only about “fairness,” treating Indians the same as all other immigrants with respect to their places in line, not dealing with the green card shortages that cause the backlog in the first place. As I’ve detailed before, it would dramatically decrease waits for Indians from decades to 7–8 years, while everyone would end up waiting about that long also rather than not at all. The RELIEF Act would solve both problems, ending both the inequity and the shortage.
The policies that the RELIEF Act changes
- Phases out the per‐country limits over the course of 5 years for employment‐based green cards and increases the per‐country limits for family‐based immigrants from 7 to 15 percent (pp. 2–7).
- Creates a pool of new green cards equal to almost the entire existing backlog of employment‐ and family‐based applicants (pp. 8–9). In my April policy analysis, I estimated the entire backlog was about 4.7 million in 2018. It would award those over the course of 5 years without regard to the country limits.
- Uncaps the family‐sponsored second preference F‑2A category (pp. 9–10) for new spouses and minor children of existing legal permanent residents in the United States (e.g. new marriages that occur after the person receives a green card). This category has a cap of about 88,000 and backlog of about 150,000.
- Increases the number of green cards for the family‐sponsored first preference category from 23,400 to 111,334, essentially reassigning the 88,000 from the F‑2A category (pp. 11–12).
- Exempts spouses and minor children of primary applicants (e.g. the workers) from the green card limits (p. 9). In 2017, nearly half the green cards in the capped categories went to these “derivative” applicants, which means that the number of green cards in these categories would almost double as a result of this change.
- Ends “aging out” (pp. 12–13). This would maintain the eligibility of a minor child of a primary applicant (i.e. the worker) until the application was processed rather than removing the child from the line at their 21st birthday. It also maintains their eligibility for nonimmigrant status as the children of temporary workers. This prevents children who grew up in the United States as children of temporary workers from being forced to leave if they turn 21 before their parents receive green cards. Because the bill also exempts minor children from the overall caps, this change would further increase the number of immigrants receiving green cards
The effect of the RELIEF Act on legal immigration
The big picture is that over the next decade, the total number of legal immigrants receiving permanent residence would virtually double. From 2020 to 2024, the legal immigration rate (new immigrants as a percentage of the population) would increase to 0.75 percent, which would be the highest level since 1921, just before Congress slammed the gates on legal immigration. The effect is likely greater than the estimates here because an increase in the number of green cards will eventually result in more U.S. citizens who can sponsor spouses, minor children, and parents without a numerical limit, which will increase immigration even further.
Table 1 breaks down the changes by category. The total number of family‐sponsored immigrants would increase by at least 375,000 and probably more once those family members receive citizenship and can sponsor more. The employment‐based categories would also nearly double from 140,000 to 235,000. The diversity lottery program would also double. The primary driver of these changes is the exemption of spouses and minor children of new legal immigrants who are the primary applicants. They constitute half or more of the total immigrants in each category. In some cases, they are nearly two‐thirds. For example, the EB‑5 investors category would nearly triple with the removal of investors’ children from the cap.
The new numbers would likely stabilize the categories, meaning that wait times wouldn’t continuously grow worse. On the employment‐based side, wait times would likely be less than a year for everyone. The RELIEF Act lacks some important provisions contained in Senator Rand Paul’s BELIEVE Act (reviewed here). Among other things, the RELIEF does not provide green cards to children of H‑1B workers who have already aged out, as Paul’s bill would, and Paul’s bill quadruples the employment‐based figures, rather than merely doubling them. Nonetheless, by fixing both family‐ and employment‐based immigration, the RELIEF Act probably contains the best legal immigration reforms overall since the comprehensive immigration reform bill (S. 744) that passed the Senate in June 2013 because it makes legal immigration viable across so many categories.
Sen. Durbin appears to have introduced it because he has blocked the Fairness for High Skilled Immigrants Act in the Senate and needed to explain what he would do instead. Unfortunately, while his policy undoubtedly makes more sense, it politically has little chance of passage. Republicans already blocked Sen. Durbin’s attempt to have the bill receive floor consideration, and it is not likely that it will receive the bipartisan commitment needed to pass the Senate. President Trump would almost certainly veto it.
Meanwhile, the Fairness for High Skilled Immigrants Act, while it doesn’t fix all the problems, could become law now. It’s unclear whether the senators are trying to work out a compromise, but a deal seems unlikely given the distance between Sen. Durbin and Sen. Mike Lee (R‑UT) who is the lead cosponsor of the Fairness for High Skilled Immigrants Act. Sen. Lee has already rebuffed his attempt as well as others’ attempts to amend his bill to contain more green cards, making the prospect of a compromise here remote.