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Green Card Crisis Harms U.S. Competitiveness: 2007

 “Over the past 15 years immigrants have started over 25 percent of U.S. public venture-backed companies... like Intel, Solectron, Sanmina SCI, Sun Microsystems, eBay, Yahoo!, and Google. . . companies established by immigrants generated more than $130 billion in revenue in 2005.”ⁱ

The Issue:  Talented professionals on American employers’ payroll are leaving to take jobs with competitors abroad.  As Australia, Canada, China, India, the United Kingdom and other countries all become more desirable destinations for professionals, American employers are losing.  Congress must address urgent reform of the permanent visa (“green card”) process to fix this problem and enable American employers to compete.  

How to Fix Green Card Shortages:  (1) an EB green card cap increase from 140,000 to 290,000 visas annually; (2) exemptions, for example, to those workers who have earned a U.S. masters degree or higher from the EB cap; (3) an early adjustment for professionals who cannot access an immigrant visa, but have an approved labor certification and/or immigrant petition so they may continue to work and travel; (4) 6th and 8th year L-1 visa extensions to allow L-1s pending in the labor certification or EB green card backlogs to extend stay until a time when a final decision is made on the foreign national’s lawful permanent residence; and, (5) recapture of unused visas from previous fiscal years.

Why The Concern?  American employers at minimum must retain foreign talent already working in their companies. Keeping this talent becomes difficult with the unavailability of green cards.  The DOS is annually responsible for “rationing” available green card numbers, forcing thousands in American employers’ workers to wait at time up to eight or nine years to get a green card.  Most of these professionals have already been in the United States for over ten years and this unavailability means they cannot be promoted, change work locations, and additionally many spouses cannot work, so then often leave to go back overseas to our competitors.  Professionals face these realities and Congress must act.

How Do Workers Get an EB Green Card?  The EB preference system provides green cards for foreign nationals sponsored by American employers.  The annual EB cap is 140,000, covering five EB preferences allocated equally among all countries (see ACIP’s The Five EB Preferences and Backlogs).ⁱⁱ  Individual countries are subject to annual ceilings, which have resulted in backlogs for those born in high-demand countries like India and China, even if the overall visa limit is not reached.  Unlike the H-1B cap, spouses and children count against the quota, leaving fewer visas for workers.  If a category is “oversubscribed” only applicants who applied before a certain “cut-off” date can obtain a visa.

Have EB Backlogs Happened Before?:  Yes.  The current annual allotments of permanent EB visas were set in 1990 to address similar backlogs that existed in the late 1980s. Before Congress acted, the backlog reached one and a half to three years or more depending on nationality, a short wait compared to the near six-year (plus an additional two to three years processing) waits present in some cases now.  While the 1990 quotas were sufficient for years, in the late 1990s, backlogs and cut-off dates emerged for professionals of certain countries due to the “per-country” quotas similar to the issue today.  Congress acted in 2000 to relieve the per-country quotas (AC21 law)ⁱⁱⁱ.  However, since worldwide demand is now greater, there will be few visas left to relieve the per country quotas.

How Is It Known When Visas Run Out?  Because the Immigration and Nationality Act (INA) limits the number of immigrant visas that can be issued each year, the DOS is charged with regulating the flow of visas to ensure that the annual statutory limit is not exceeded.  It does this using a monthly Visa Bulletin^iv that details whom may apply for an EB immigrant visa.  When DOS believes that the overall cap or a per country cap will be reached, as it has for February 2007, it cuts off applications by imposing a “cut-off ” date and will only accept green card applications whose “priority date” (place in line) is before the cut-off date (see ACIP’s The Five EB Preferences and Backlogs).  

For example:  In FY07 the cut-off date in the EB-3 category for those foreign nationals born in India is May 8, 2001.  Assume a U.S. employer hired an Indian professional after graduation in 2001 and immediately began the green card process.  Even if the professional has an approved labor certification and immigrant petition today, it could still be years before she can finish the green card process.  Employers need relief this year. Congress can help.

The Solution: Congress must reform the EB green card system in the 110th session and ensure American employers can retain the professionals they need to win the innovation race against our foreign competitors today!

To learn more about the five employment-based green card preferences and backlogs, click here.