If the Bathtub Is Overflowing, Turn Off the Faucet: The EB 1-3 Visa Backlogs

A sensible decision-maker, seeing a bathtub overflowing and a faucet turned on, would:

1. Turn off the faucet;
2. Make sure the tub's drain was not blocked; and
3. Start to clean up the resulting mess.

Our immigration system lacks such a sensible decision-maker, so it continues to approve green card petitions (the open faucet) at rates faster than the availability of visas (the drain) while wallowing around in the backlog of approved but not-yet-issued green cards (the water on the floor).

And time is not on our side. For every day this system continues, the puddle grows larger. In addition to the visa backlogs, there is another and smaller gap between application and benefit. This is the time, usually months, it takes for the government to process the claim.

Is there a way employment-based (EB) visa backlogs can be eliminated without granting huge increases in the visas? Can this be done without dashing the long-held hopes of people with approved petitions waiting for green cards?

The answer to both questions is, perhaps surprisingly, "yes!"

We recently offered some suggestions on the least fearsome of the visa backlogs in the comparatively small EB-5 program.

We now turn to a larger population, those in the EB-1, EB-2, and EB-3 categories, both workers and their dependents. Backlogs for these visas, which have been allowed to creep up for decades, create similar but more difficult policy problems. This is the case not only because the numbers are much larger, but because the people on the waiting list are less privileged than those waiting on the EB-5 list; the latter are, by definition, millionaires.

Background. There are five segments of the employment-based green cards, each with a separate ceiling. In earlier years, some of these categories were not totally utilized and a "fall-down system" eased the pressure on some of the other classes. Now, for natives of some countries there are backlogs in each of the categories.

A breakdown of those on the EB visa waiting lists can be seen in the following table, which is based on State Department data with some of the least numerically significant subpopulations eliminated to make the presentation easier to follow.

A quick look at the table indicates that the backlogs are heavily concentrated among Indian nationals, with the Chinese being a distant second. Further, close to two-thirds of the backlog is in the EB-2 category; this is to some extent a self-inflicted wound, as virtually all of those qualified for EB-2 could fit into the EB-3 class as well; but EB-2 is a rank above EB-3. The small EB-4 category, for reasons explained in the note under the table, is not included in our recommendations.

The Categories. Each of the three categories of interest (EB-1, EB-2, and EB-3) is allocated 40,040 new visas each year, for a total of 120,120. These visas are for the workers involved, their spouses, and their children under the age of 21.

• EB-1 is for persons of extraordinary ability, outstanding professors, and some multinational executives. (Melania Trump managed to secure such a visa when she was dating Donald Trump in 2001.)
• EB-2 is for members of professions with advanced degrees or for persons of exceptional ability.
• EB-3 is for skilled shortage workers with at least two years training or experience, professionals with baccalaureates, and some unskilled workers.

There is a growing population, just within the EB-1, 2, and 3 categories, of about 800,000 individuals who have been ruled admissible as permanent resident aliens, but who do not yet have a visa because of the ceilings.

The Backlogs. Those who want open borders routinely argue that more visas are needed to ease the backlogs, and often discuss the backlogs in alarmist terms. There is, for instance, a recent Cato Institute report with this sensationalist title:

150-Year Wait for Indian Immigrants with Advanced Degrees

This is statistical poppycock. It is apparently based on the assumption that none of the would-be immigrants from India, now on the very crowded EB-2 list, would have done any of the following (throughout a period of over 150 years!):

• Died;
• Decided to leave the waiting list;
• Moved from the EB-2 list to another EB list (Cato's text does mention this possibility;)
• Become green card holders through marriage; and that
• None of the children of the workers ever passed their 21st birthday, and thus left the list.

Cato must have secured this number in this manner: There were 216,684 Indian nationals on the EB-2 waiting list in April of this year; the State Department estimates that for everyone on that list there will be one dependent, which produces a total of 433,368 would-be EB-2 immigrants. If a waiting list exists, then only 7 percent of the annual flow of visas can be used by people from a single country; this produces 2,803 visas a year for Indian nationals in EB-2. Then one divides 433,368 by 2,803 and gets 154.6 years; the Cato report uses 150 years in its title and 151 years in the text.

Which of these estimates is a better calculation is a pallid question, compared to the prospect of the last of the visas being issued, in, say, the year 2172 (2018 + 154) to a no-longer sturdy band of 2,803 Indians, mostly males, with the workers among them having an average age of 181 (assuming they filed their papers at the average age of 27).

In the meantime, the monthly State Department data on who gets the new batch of visas each month is misleading — though not deliberately — in the other direction. For sensible, work-load reasons, the Department every month provides the last petition approval date that can be honored with a visa in view of the various ceilings. The July Visa Bulletin gives May 22, 2009, for EB-2 visas. An Indian National with an EB-2 petition approved before that date is — finally — eligible for the visa.

This might suggest a nine-year wait (2018 - 2009 = 9). But that's wrong, too, because in each of the years since 2009 the system approved far more EB-2 petitions than could be accommodated within the visa limits.

At this point it is useful to step back and look at two big numbers:

• 120,120: The number of visas to be issued annually for the EB-1, 2, and 3 classes.
• 799,830: the estimated number in the backlog.

Dividing the larger number by the smaller one gets 6.66 years. Contrast that to the scary number of 150 years or so trotted out by Cato.

Proposal. If all EB-1, 2, and 3 petition approvals were simply suspended for six years and eight months (a big if), and if there were some movement from the EB-2 list to the EB-3 list (and if the law remained constant) the chances are that all three backlogs would disappear, in six to 10 years, particularly if some administrative tinkering could be done to speed the process.

This proposal would:

1. Eliminate all of the backlogs in six to 10 years;
2. Give virtually everyone on the list a visa faster than currently possible;
3. Not add to the number of visas;
4. Honor the current per-country ceilings;
5. Do very little to change the flow of immigrants to this country;
6. Do very little to change the total number of foreign-born in the U.S. population; and
7. Do nothing, one way or the other, to the supply of skilled labor.

This proposal would have minimal demographic impacts because the people involved are already in this country, and already working, mostly as legal nonimmigrant workers, mostly in the H-1B program.

I calculate from the Yearbook of Immigration Statistics (Table 7) for the year 2016 that the following were the percentages of grants made for people who adjusted status, rather than arrived from abroad:

• EB-1: 94.36 percent
• EB-2: 94.47 percent
• EB-3: 74.80 percent

So, for the most part, we are not dealing, as we are with family immigration backlogs, with people yearning to come to the United States but denied the chance. This removes some of the emotional complications. The proposal has these elements:

1. Suspend approving all EB-1 to 3 petitions for say, six years.
2. To clean out the deadwood, make it mandatory for those wanting to stay on the list to file a fresh set of papers every year, together with a fee of $1,000, for example.
3. Reward those who are willing to leave the list, abandon their employment-based application, and depart the country with, say, a $20,000 check.
4. Provide, at no cost, good professional counseling to those in the backlog on how to secure an employment visa in other countries.
5. At the end of six years, review what has been done, and make needed changes as we switch to a new system in which the approval of petitions will never again exceed the number of visas available.

Ceasing issuance of new petitions will swiftly terminate the operations of the per country ceilings within each of the three categories, allowing the visas available to be used to reduce both the Indian and Chinese backlogs without changing the law. (The no more than 7 percent within a category requirement does not apply if there is no backlog for applications from other nations.)

Are there downsides to such a proposal? Yes, there would be objections from people now on H-1B visas who want green cards more quickly. Further, some employers might notice that they did not have the same kind of indenture powers during the period as they would not be able to cause some workers to secure green cards.

From a restrictionist point of view, the proposal, while cleaning up the backlogs and removing them as excuses to increase the number of visas, would not, in and of itself, do much to reduce the number of foreign workers.

My sense is that the nation would be in far better shape if this proposal were to be adopted. It would be helpful to the long-run immigration scene, and much less difficult, politically, to pursue than the badly needed reduction in the H-1B program.

Meanwhile, there are similar but larger backlogs in the family-based portion of our immigration system. These backlogs could be approached in a similar way to the proposals suggested above, but that's a subject for another day.