Solving the H-1B Green Card Backlog: It's Easy If You Try

By John Miano on March 21, 2017

I recently posted about the paradox that fixing the immigration system requires the action of those who broke it in the first place. I did so in the context of the disastrous Immigration Act of 1990.

The Immigration Act of 1990 was a giant screw up. Worse than that, it set in motion chains of screws ups that continue to this day. In aviation, this is called the graveyard spiral.

One of the stated purposes of the Immigration Act of 1990 was to reduce guest worker usage by providing more green cards. However, the 1990 Act thwarted that goal by establishing dual intent for H-1B workers and allowing them apply for green cards. Prior to 1990, the H category was for guest workers who would return home: non-immigrants. The 1990 Act also removed "any possible challenge prior to entry" for guest workers.

Those changes had the entirely predictable effect of transforming H-1B visas into a try-to-buy program.

Adding to the screw up, the Immigration Act of 1990 did not apply per country limits to H-1B visas to correspond with the green card quotas.

Indian interests got on the H-1B program early, crowding out others and monopolizing H-1B. In 2000, about 45 percent of new H-1B visas (90,668) went to Indian nationals. In 2015, the percentage rose to two-thirds (82,263 visas) —between 1998 and 2003, Congress temporarily expanded the number of H-1B visas.

The percentage of Indian H-1B visas rises in years where the quota is reached and falls in those years where the quota is not reached, showing the crowding-out effect. For example, in FY 2010 (a year the H-1B quotas were not reached), the percentage of Indian H-1B visas dropped back to 45 percent.

The United States makes a maximum of 140,000 employment-based green cards available each year. Because of our national policy of diversity in immigration, each country is limited to 7 percent of those (10,000).

If you allow 80,000 H-1B workers (plus their dependents) from India to apply for 10,000 green cards each year, the entirely predictable result is a backlog.

The backlog got so long that it started going past the six-year duration of H-1B.

Providing another illustration of the paradox, Congress addressed this issue in the American Competitiveness in the Twenty-First Century Act of 2000 by allowing aliens with pending green card petitions to remain in H-1B status indefinitely.

That change had an entirely predictable effect: even bigger backlogs.

Currently, the backlog for Indians seeking an EB-3 employment-based green card is 12 years.

But notice that this problem of green card backlogs is limited to just four countries: India, China, Philippines, and Mexico. For the rest of the world the system works fine.

Providing yet another illustration of the paradox that problems in the immigration system have to be fixed by the same folks that created the problems is "H.R.392, the "Fairness for High-Skilled Immigrants Act of 2017".

This bill eliminates per-country quotas on employment-based green cards and increases the percentage limits for others. If this ridiculous legislation (currently with 144 co-sponsors) is enacted it would:

  • Cause abandonment of the national policy of having an immigration system based on diversity and replace it with a policy of prioritizing immigration from India;
  • Ease the problem of green card backlogs from India, China, Mexico, and the Philippines by inflicting that misery on the entire rest of the world; and
  • Force anyone who wants an employment-based green card to get in the H-1B guest worker queue first.

If enacted, H.R.392 would be the final nail in the coffin to the stated objective in the Immigration Act of 1990 of reducing guest workers in favor of green cards and would create a train wreck in the green card system.

The solution to the H-1B–green card backlog problem is simple to anyone who is not dependent upon legal fees for visa processing: Make guest worker visas strictly nonimmigrant or impose per-country quotas on guest worker visas to correspond to the limits on green cards.

Instead of looking at the big picture and examining the flows and choke points in the immigration system and considering overall immigration policy, Congress has been lazy and just used the squeaky wheel for guidance.