Per-country caps have created extensive backlogs that leave immigrants and their families waiting years to receive their green cards simply because of their country of origin. This restricts their ability to work, travel, and contribute, and creates significant challenges for their families. It also makes the U.S. less attractive to global talent, hindering our competitiveness. Congress should pass per-country cap reform to ensure fairness and begin reducing the green card backlogs.
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Per-Country Cap Reform
Priority Bill Spotlight
Per-country caps on green cards create decades-long backlogs, making the immigration system less efficient & less fair. Bipartisan legislation would help fix the harms of backlogs by reforming the caps.
"Per-country caps are numerical limits on the issuance of green cards to individuals from certain countries. "
Per-country caps force immigrants to wait decades for green cards, simply because of their country of origin
Applying for lawful permanent residence (a “green card”) after an individual meets all of the requirements should be a quick and easy process. In some countries, like Canada, it can happen in less than a year. But in the United States, backlogs created by "per-country caps" on green card issuances force some immigrants to wait years or even decades after qualifying to be issued green cards, whether they are applying from abroad or adjusting status from within the U.S. (including the vast majority of employment-based immigrants).
Per-country caps are numerical limits on the issuance of green cards to individuals from certain countries. Immigration law provides for approximately 140,000 employment-based green cards to be issued each year. However, only 7% of those green cards can go to individuals from a single country annually. If the number of individuals being sponsored from a single country is greater than 7% of the annual available total, a backlog forms, and the excess approved petitions are not considered until a visa becomes available and their petition falls within the initial 7% per-country cap.
These country-specific caps have created extensive backlogs, forcing individuals from certain countries—primarily India and China in the employment-based categories—to wait much longer than average to receive their green cards, simply because of their country of origin. FWD.us estimates that more than 1 million people, including dependent spouses and children, are waiting in the U.S. in employment-based green card backlogs. In some categories, applicants who began the process in 2012 are just now able to file formally, meaning they may have waited more than a decade to join their families, even though they were already qualified to do so. These wait times are projected to extend up to 50 years if the law is not changed.
More than 1.2 million immigrants and their families in the U.S. are stuck in green card backlogs
Count of individuals and estimated count of dependents waiting for employment-based green card availability
Source: Department of Homeland Security, "Form I 140, I 360, I 526 Approved Employment Based Petitions Awaiting Visa Availability By Preference Category and Country of Birth As of June 2023."
1Immigrants who are on temporary visas (like an H-1B visa) and who have been sponsored by an employer for a green card must wait for a visa number to be available before they can file their application to adjust status. Employment-based immigrants apply through one of five "preference" categories. The worldwide limit on employment-based immigration (140,000) is apportioned among these five preference categories according to immigration law. Prospective immigrants qualify for a preference category based on their skills, education, employer sponsorship, or level of investment in a. U.S. business. A full description of the preference categories is available from USCIS at https://www.uscis.gov/working-in-the-united-states/permanent-workers.
2Estimates of the total number of individuals in the backlogs were generated by combining counts of individuals with approved employment-based applications waiting on an available visa number with estimates of the number of derivatives accompanying principal applicants in those categories. Estimates for derivatives were generated based on ratio of derivatives to primary beneficiaries who adjusted through each employment-based category in FY 2022, the most recent data available.
"This broken system makes the U.S. less attractive to foreign-born talent and hinders our global competitiveness."
Green card backlogs keep families apart, hurt American businesses, and hinder our global competitiveness
Immigrants already living in the U.S. who are applying to adjust status from a temporary visa must continue to renew their temporary status until the green card is available, which makes changing jobs or receiving a promotion exceedingly difficult. Meanwhile, their families also face harmful limitations, including the risk that their children could “age out” of their immigration status and be exposed to risk of family separation or deportation. And U.S. businesses looking to hire or retain talented individuals for jobs that cannot be filled domestically are limited from sponsoring the qualified workers they need. Studies show that restrictions on highly-skilled immigration and barriers to hiring needed workers push companies to move jobs and production offshore.
This failed system makes the U.S. less attractive to global talent and hinders our economic competitiveness. A survey of individuals waiting in backlogs showed that 32% were seriously considering returning to their country of origin within the next year, while an astonishing 70% reported they were considering moving to a more welcoming country within the next year. These individuals have been living and working in the U.S. for many years; even though they have built lives here, the waiting for them has become so unbearable for them that they will abandon all they have invested in the U.S. to move to another country that will allow them to thrive.
Meanwhile, international student enrollments at U.S. colleges and universities have slowed and even declined in recent years, and other countries are working hard to recruit international students with welcoming policies. International students graduating from U.S. colleges and universities are critical to the U.S. workforce, particularly in STEM fields and emerging industries, where they make up a significant share of workers. Sacrificing our role as the top destination for international talent will only further undermine our economic leadership.
"These bipartisan bills would eliminate per-country caps on employment-based green cards (with some guardrails) and would raise the caps for family-based green cards to 15%."
Bipartisan legislation would reform per-country caps and help clear backlogs
Senators Kevin Cramer (R-ND) and John Hicknelooper (D-CO) have re-introduced the bipartisan Equal Access to Green cards for Legal Employment (EAGLE) Act in the Senate (S. 3291). In the House of Representatives, Representatives Rich McCormick (R-GA), Pramila Jayapal (D-WA) and Raja Krishnamoorthi (D-IL) have introduced the Immigration Visa Efficiency and Security (IVES) Act (H.R. 6542).
These bipartisan bills would eliminate the per-country cap on employment-based green cards (with some guardrails) and would raise the per-country cap for family-based green cards to 15%.
The bills are adapted from earlier legislation called the "Fairness for High-Skilled Immigrants Act," bipartisan legislation that had previously passed both the House and the Senate with unanimous consent, but was never reconciled to be sent to the President for signature. The updated EAGLE Act and IVES Act include numerous bipartisan compromises and amendments negotiated in previous Congresses, meaning that the bills should enjoy broad bipartisan support in this session, too.
The EAGLE Act and IVES Act would reserve some green cards and establish a complex transition period before the employment-based per-country cap is completely eliminated, to ensure that immigrants from lower admission countries do not face significantly increased wait times as a result of the bill.1
The bills also include language to protect families and address challenges brought on by the backlogs, including allowing individuals to file for adjustment of status before a green card is available to them if they have waited two years or more for an available visa. Filing early to adjust would allow individuals to secure travel authorization and portable employment authorization so that they could change employers. The bills ensure that children remain eligible regardless of their age when the visa becomes available, helping keep families together.
In addition to per-country cap modernization, the EAGLE Act and the IVES Act also introduce new oversight and reporting requirements, and new fees for the H-1B highly- skilled temporary worker program, along with increased protections for U.S. workers in both the temporary and permanent resident immigration application processes.2 Additionally, the IVES Act would implement new wage requirements for H-1B visas, and restrict issuance of H-1B visas to nationals of "foreign adversary countries" in employment related to "matters of vital national interest."
Congress should reform per-country caps to keep families together and boost our economy
Per-country cap reform alone will not eliminate the green card backlog, but it is an urgent and necessary first step. Congress must also increase the number of green cards available each year, so that more people can move out of the backlog than are added in.
To do this, Congress should act to recapture green cards that have gone unused in previous years. Congress can also act to expand and modernize immigration channels so that more green cards can be issued, and take steps to support families while the backlogs are drawn down, such as passing legislation to protect children from aging out of status.
The per-country caps have made the immigration system less efficient and less fair. Reforming the caps is a commonsense solution to ensure that individuals and families aren’t forced to wait longer simply because of their country of origin, and would be a critical first step in reducing backlogs.
Congress should pass bipartisan per-country cap reform, and send such legislation to the President’s desk immediately.
Andrew Moriarty
Immigration Fellow
Notes
- During the transition period, a share of visas (30% in the first year, then steadily decreasing to 5% for the seventh, eighth, and ninth years) are reserved for individuals from countries who are not from the top two sending countries, as well as 5.75% of visas for family members and other new arrivals. The bills also reserve 4,400 EB-3 visas for workers in shortage occupations (which currently includes physical therapists, nurses, and people with exceptional ability in the sciences and arts).
- The new bills add additional requirements, fees, and penalties for the Labor Condition Application process, and require employers petitioning for an H-1B employee to post information about the job on a Department of Labor website. They also expand H-1B employer compliance, requiring employers to testify that they have not targeted their advertising or recruitment solely at H-1B visa holders. Furthermore, employers that have more than 50% of their workforce on H-1B or L intracompany transferee visas would be prohibited from petitioning to sponsor additional H-1B employees. And the bills would end the use of “B-1 in lieu of H-1B,” a practice where H-1B-eligible individuals are allowed to work in the U.S. temporarily while employed by a foreign company.
