Immigration opponents frequently argue that immigrants should “wait in line” and come to America the “right way.” Many Americans would say the “right way” means applying for permanent residence or a temporary visa through the legal immigration system. But several factors complicate foreign nationals using the legal immigration system. First, the categories to immigrate legally, or even to work for a time on a temporary visa, are limited. Second, and the focus of this analysis, the legal immigration categories that exist often force those who apply to wait many years to immigrate. The primary cause of these long waits is that the demand for visas far outstrips the supply, which the law constrains with specific numerical limits for each visa category.
Congress should reduce the long waits for legal immigrants. The most direct way would be to eliminate or increase the number of visas for legal immigration categories. However, since there is little political appetite to increase or eliminate numerical caps, Congress should functionally approximate this goal by placing a maximum wait of five years for a green card for eligible immigrants regardless of the numerical cap.
Under current law, there is no numerical limit for visas for the spouses, minor children, and parents of adult U.S. citizens (immediate relatives), so they do not have waits other than normal processing times.17 Immigrants seeking green cards via the employment‐based and family‐sponsored preference categories can face long waits because those visa categories have annual limits, 140,000 and 226,000, respectively, that are far below the quantity of eligible applicants (worldwide limits). The law also limits single nationalities to no more than 7 percent of the total number of visas issued in the capped categories, unless the visas would otherwise not be used (per‐country limits).18 Employment‐based immigrants, particularly from India, must wait many years to immigrate because of the worldwide and per‐country limits. The wait for family‐sponsored immigrants can be decades, depending on the visa category and country of origin.
Proposal for Maximum Wait Time for a Green Card
To ensure reasonable wait times, Congress should change the law to impose a maximum wait for a green card. The government should issue a green card to employer‐sponsored immigrants within five years of receiving an approved immigrant petition. For family‐sponsored immigrants, the standard should be to award green cards within 10 years of an approved immigrant petition. The maximum wait times should be counted from the date of the initial application, rather than from the date the measure becomes law. People who already have waited 10 years for green cards would not see the advantage of a new law that requires them to wait an additional five or 10 years.
The new law would be simple to implement, and there are several examples in other countries. In Australia, an employer‐sponsored immigrant can be approved for permanent residence after two years in a temporary status (an equivalent of H-1B status). Employment‐based immigration in Australia operates similarly to the United States and is distinct from the point‐based system, which is used in Australia primarily for individuals without employer sponsors. In Canada, under the Express Entry system, which is a point‐based system, an individual can usually gain permanent residence within one to two years, with an advantage under the point system for those who have worked in a temporary status in Canada. In Germany, foreign nationals sponsored in temporary statuses can put in applications for permanent residence within 21 months, if they possess high levels of German language ability, or 33 months if working on European Union (EU) blue cards. Individuals can also apply after five years of working and paying into the German retirement system and demonstrating a strong German language ability and knowledge of the country’s institutions. In the United Kingdom, France, and Switzerland, working in the country for five years in temporary status can make an individual eligible to apply for permanent residence. In Switzerland, the period is 10 years if not a national of an EU country.19 A member of Congress has even proposed a similar threshold for the United States.20
Arguments for and against a Maximum Wait Time
The primary argument in favor of imposing maximum wait times for visas is that the status quo results in unreasonably long waits for individuals who have “played by the rules” and applied through the legal immigration system.
In 2019, Indian employees of U.S. businesses who received green cards waited about a decade in the employment‐based second preference (EB-2) and employment‐based third preference (EB-3) categories, with a backlog of more than 600,000 applicants. Their projected future wait time is about 119 years for the EB-2 and 20 years for the EB-3.21 These are projected estimates, and it is likely that the waits for EB-2 and EB-3 visas would shrink as individuals refile for other visas, abandon their applications, or die. But the waits would still stretch several decades. Chinese investors in the EB-5 category must also wait decades before they can receive green cards. Eliminating the per‐country limit for employment‐based immigrants would, by itself, lower the wait times considerably for Indians. A bill (the Fairness for High‐Skilled Immigrants Act) passed the House of Representatives in 2019 that would eliminate the per‐country limit for immigrants in the employment categories, following a three‐year transition period.22
Changing the law to allow a maximum wait of five years for employment‐based green cards would help even if a bill to eliminate the per‐country limits became law. That is because the 140,000-worldwide annual limit for employment‐based immigrants would remain in effect and, if the bill passes, the typical wait would exceed five years for applicants of all countries in the employment categories.23 A maximum wait time for green cards would reduce the negative effect of increasing wait times for immigrants from countries other than India or China by eliminating the per‐country limits.
Similar to employment‐based immigrants, the waits for family‐sponsored immigrants are affected by the low annual limits and the per‐country limit. As of November 1, 2019, approximately 3.5 million people were waiting in family‐based immigration preference backlogs, according to the Department of State.24 The backlogs can be divided as follows: siblings of U.S. citizens (approximately 2.1 million), adult children of U.S. citizens (883,000), and spouses and minor or adult unmarried children of lawful permanent residents (465,000). The State Department does not publish information on how many individuals have been waiting five or 10 years in immigration backlogs.
The waits are extremely long for those applying today in family‐sponsored categories. If the immigration backlog of approximately 200,000 married Mexican adult children is divided by 1,600, which is the annual per‐country limit for Mexico in that category, then the estimated wait time for a newly applying married adult Mexican son or daughter to immigrate to the United States is 125 years.25 Average wait times have doubled since 1990, the last time the worldwide limits were updated. For instance, Filipino siblings of adult U.S. citizens who received green cards in 2018 waited 23 years after entering the line for green cards in 1995.26
Like the numerical limits, the maximum wait time would also be arbitrary, but unlike increasing the numbers, a maximum wait time would spotlight the difficulty of legally immigrating here. The public would likely also be more receptive to a maximum wait time than increasing the numerical caps by an arbitrary amount. Everybody understands what a maximum wait time means. Few understand what additional green cards for specific categories mean.
While it may seem unfair to impose a longer maximum wait time for family‐sponsored immigrants, this is reasonable because they are almost all waiting abroad. And almost all employer‐sponsored immigrants are already here on another temporary visa. This means that a maximum wait time would benefit family‐sponsored immigrants more than employer‐sponsored immigrants.
The chief objection to the proposal would be that a maximum wait time for a green card would overrule the annual numerical limits legislated by Congress. However, if Congress were to impose a maximum wait time, then it would affirm a new principle: no one who applies for legal immigration should wait longer than five or 10 years.
In the case of employment‐based immigrants, over 80 percent are already in the United States working on temporary visas, such as the H-1B, which means a maximum wait time would only gradually change the number of workers physically in the country.27 Granting permanent residence sooner would give such individuals a greater opportunity to start a business or make other career changes sooner without visibly increasing the number of immigrants who are here. It would also make America a more appealing place to build a career for high‐skilled foreign nationals.
A maximum wait time of 10 years for family‐sponsored immigrants would not change whether individuals receive green cards but when they receive them. The proposal would greatly benefit American citizens waiting for their close relatives to be allowed to immigrate. It also would ease the burden of family separation, which is a laudable legislative goal.
Additional Issues Caused by a Maximum Wait Time
The proposal is likely to be viewed as too moderate or too radical, depending on one’s view of immigration. No surveys have asked the question: “How long is a reasonable amount of time for eligible individuals to wait to immigrate after submitting an application?” It is appropriate to assume, though, that few Americans would say 20 years or 125 years is a fair or reasonable length of time to wait for legal immigration to the United States.
Supporters of immigration would likely view a maximum wait time as too moderate because it keeps the current legal immigration system in place and only addresses at the margin one of the system’s most egregious features—long individual wait times. Still, the proper yardstick is to compare the proposal to the status quo rather than a more significant change less likely to become law.
One can estimate that the typical employment‐based immigrant would wait approximately six years under the Fairness for High‐Skilled Immigrants Act after that bill’s transition period ends.28 In this respect, a five‐year upper wait limit for employment‐based immigrants would be an improvement.
One way that critics could label the proposal too “radical” is if everyone who has already waited five years (for employment‐based immigrants) or 10 years (for family‐sponsored immigrants) abruptly receives a green card the year after the proposal became law. Congress could address this issue by creating a transition period for current applicants. For example, a provision could be added stating that no more than 25 percent or 50 percent above the annual limit in a given category can go to people who have already waited beyond the five‐ or 10‐year limit at the time of enactment. In the category for the brothers and sisters of U.S. citizens, that would mean no more than 16,250 to 32,500 additional green cards would be awarded in the category each year. This would smooth the transition to higher numbers and phase in the reform gradually to avoid an immediate backlash.
The American public insists that foreign nationals must immigrate the “right way.” However, elected officials have not put into place laws and policies to make it possible for foreign nationals to immigrate in a reasonable time. One way to ensure that no immigrants have an unreasonable wait to immigrate legally is to impose a maximum wait time for green cards. That would improve the competitiveness of U.S. companies, encourage more individuals to immigrate legally to the United States, and reduce systematic unfairness in our immigration system.