Why Scrap the Per-Country Cap?

By Jessica M. Vaughan on December 19, 2012

Once again, the current Congress is under pressure to change fundamental parts of our immigration system in order to fix the problems created by previous Congresses that were too generous. Special interest groups are pushing to eliminate provisions in immigration law that now help prevent green card allocations from being monopolized by immigrants from just a few countries. If the proposed changes are approved this month by the U.S. Senate (the House already approved them), then for the foreseeable future nearly all 80,000 employment green cards allotted annually for professional workers and their families would go to applicants from India, and applicants from most of the rest of the world probably would be delayed for at least three years. Such an outcome would reward those Indian companies and workers, largely in the technology sector, who took advantage of the major expansion of the lightly supervised H-1B and L temporary visa programs over the last decade.

The bill, known as the Fairness for High Skilled Immigrants Act of 2011, would do away with the per-country limits that are placed on allotments of employment green cards (and double the per-country allocation for family green card categories, which seems like kind of an add-on to attract support from other ethnic constituencies). Currently, applicants from India, China, Mexico, and the Philippines have to wait longer to get green cards in certain employment categories because there are more applicants from these countries than the number of green cards available.

Because the criteria for admission in the two main employment green card categories (known as second and third preference, or EB-2 and EB-3) are closely tailored to the criteria for admission in the H-1B and L (intracompany transfer) temporary categories, the temporary categories serve as feeder programs for the green card categories.

But admissions in the temporary categories are far greater than the number of available employment green cards. Over the last decade, we issued between 160,000 and 260,000 new H-1B and L temporary work visas each year, not counting family members. In contrast, the annual allotment for EB-2 and EB-3 workers is 80,000, including family members.

The other problem is that a huge share of the temporary workers come from one country — India. Typically, about half of the H-1B and L-1 guestworkers admitted each year are from India. Their numbers have been more than five times larger than the next highest country, China. Once a country becomes oversubscribed, then the green cards are strictly apportioned by category. As a result, only 5,606 EB-2 and EB-3 green cards are available at the start of each year for the four oversubscribed countries. Existing law also provides that any employment numbers unused by other countries can go to the oversubscribed countries; but the number of Indian applicants is so large that it makes only a tiny dent in their waiting list. Nevertheless, Indians already get more than 30,000 employment green cards a year, almost twice as many as China.

The demand for these employment-based green cards has exceeded the supply since January 2005. This occurred just a few years after Congress greatly increased the limits on H-1B skilled temporary worker visas (from 2001-2003). H-1B and L admissions peaked again in 2007. Starting in 2007, the waiting list became so large that USCIS stopped adjudicating additional applications from India and the other oversubscribed countries.

But it's not like anyone is actually leaving or suffering as a result. Thanks to provisions enacted in the same bill that expanded the H-1B limits back in 2000, those H-1B holders who are prevented from getting green cards because they are subject to the per-country limits can maintain their status for an unlimited time beyond the six-year term of the H-1B visa until a green card becomes available. They can even change jobs, as long as they stay in the same occupational sector. The State Department estimates that about 85 percent of employment visa applicants are already living here, not waiting overseas.

Proponents of eliminating the per-country caps (mainly Indian applicants and their employers) maintain that it is unfair that Indians, and to a lesser extent Chinese, Mexicans, and Filipinos, should have to wait longer for employment green cards than applicants from other countries. They say they are being penalized because their countries are more populous and produce more highly skilled workers than other countries.

On the other hand, according to my analysis of data recently released by the State Department, if the per-country caps were to be eliminated, then the effect would be that nearly all of the employment green cards would be issued to workers from India for at least three years. In each of the first two years after the cap is eliminated, Indians could possibly use as many as 89 percent of the EB-2 visas and 100 percent of the EB-3 visas.

This seems a little unfair to me, and also somehow a violation of the spirit of American immigration ideals, which include welcoming qualified applicants from any country. But it bothers me less that the beneficiaries of this proposed change come from one particular country than the fact that they were originally admitted under the auspices of a temporary visa program that has caused significant harm to certain Americans — those employed in the technology sector. For more on the problems with these temporary worker programs, see CIS's H-1B and L-1 topic pages, and this blog by my colleague David North. Why further reward those who milked this program, especially if it disadvantages those applicants who are less likely to have been employed by the Indian body shops who have dominated it? Maybe the green card delays will dampen some of the enthusiasm for these overused guestworker categories.

Senators should see this bill for what it is: just another attempt by a special interest group, in this case citizens of one particular country and industry and their employers, who chose cheaper foreign labor over local talent, to manipulate immigration law to their own narrow benefit. A more sensible and lasting way to reduce the employment green card waiting lists is to issue fewer H-1Bs and L-1 visas that stoke the demand, and to tighten up the standards for labor certification approval that leads to green cards. Or, failing that, transfer green card numbers from other categories, such as diversity and extended family, to the employment categories.