The green card backlog touched 800,000 in 2019, with over 60% of these being Indians. On Dec. 2, 2020, the U.S. Senate passed a legislation – Fairness for High-Skilled Immigrants Act – to eliminate the 7% per country-cap on green card applicants, among other things, which would have ended the painfully long wait for thousands of green card hopefuls.
Green Cards which provide lawful permanent residence in the United States can be obtained through certain family-based relations or via employment in the U.S. Under the employment-based route, 140,000 employment-based immigrant visas are available each fiscal year for foreign workers as well as their spouses and children. Further, the allotment of these visas is capped at 7% per country. As a result of these caps, a large number of Indian professionals who work in the U.S. primarily on H-1B visas, despite being approved for green cards, encounter extensively long wait times to get the green cards.
In 2019, the green card backlog touched 800,000, with over 60% of these being Indians. As per many reports, the wait time is majorly attributed to the annual quota, which has remained unchanged since 1990. The per-country limit was enacted long before Indians became the largest beneficiaries of green cards due to the IT boom, post the millennium concerns in year 2000. Many U.S. business leaders believe that the backlog could push skilled Indian workers out of the system and force them to pursue citizenship elsewhere.
In the recent past, the green card backlog fueled a debate about whether to fix the wait time for those already in the queue or allow broader immigration so that more workers are able to get permanent residency. In August of last year, Senator Mike Lee from Utah had aptly remarked on the Senate floor, “If you’re born anywhere else, anywhere else other than China; let’s say in Ghana, Sweden, Indonesia, basically any other country other than India your application will be considered immediately. This sort of discrimination is simply inconsistent with the principles of a merit-based immigration system and with our founding principles and the principles that unite us as Americans.”
On Dec. 2, 2020, the U.S. Senate passed a legislation – Fairness for High-Skilled Immigrants Act – to eliminate the 7% per country-cap on green card applicants, among other things, which would have ended the painfully long wait for thousands of green card hopefuls. But the legislation failed as its different versions of 2019 (H.R. 1044 and S. 386) passed by the House and Senate in July 2019 and December 2020, respectively were not reconciled prior to the end of the 116th Session of Congress. To be considered again, this legislation would have to be reintroduced in the new Congress, passed by both chambers with differences if any reconciled, and signed into law by the President.
But the good news is that President Biden’s administration has committed to working with Congress to address the long green card backlogs In fact, on his very first day in office, Biden sent a comprehensive immigration bill to Congress, which among other things, proposes to remove the per country cap for employment-based green cards. This bill – Citizenship Act of 2021 (the Bill) – if passed into law will help thousands of Indian IT professionals stuck in the long green card queues.
The Bill proposes to clear employment-based immigration backlogs by reducing them altogether, eliminates the per country caps and prioritizes keeping families together and growing the country’s economy. The Bill also seeks to do away with counting dependents towards the 7% country limit, thus freeing up thousands of visas that are granted to a spouse and children of the green card beneficiary. In an effort to protect children who very often “age out” before an immigrant visa becomes available to the parent and his family, the Bill also seeks to freeze the age of children (to remain below 21 years after which they don’t qualify as dependents) while they wait in the green card queue. While the Bill sounds promising, converting the propositions into law will be an uphill task for the administration owing to the slim Democratic majority in Congress. That said, the White House, reportedly, is considering a secondary approach, which is doing it piece by piece, and so there’s a chance that components of immigration reform could be moved through Congress one at a time, or in smaller packages.
In the meantime, many Indians in the green card cue are opting for an EB-5 green card that requires an investment of at least US$ 900,000 in qualifying projects in Regional Centers. However, even this path has its risks – the two main ones being, retrogression (resulting in another visa queue) and the potential end of the EB-5 Regional Center Program. Under the EB-5 program only 10,000 visas are given out each year and these are also subject to a 7% per country cap and family members are counted towards the cap. As a result, this visa option also gets backlogged for Indians from time to time. Indians seeking this visa category also stand to benefit if the per country cap, as envisaged in the Bill, is eliminated.
The Biden administration recently announced the initial registration schedule for FY 2022 H-1B cap filings. In response to this, as reported, an influential immigration advocacy group representing Indian-Americans has urged the administration not to issue H-1B visas to individuals born in India until the per country-cap on green cards is removed. According to this advocacy group, issuing new H-1B visas would bring to the U.S. more Indians aspiring for green cards and getting caught in the “industrialized process of wholesale exploitation.” The administration has not yet responded to this request and it’s not likely that it will hold off on issuing new H-1B visa to Indians. Indians, particularly IT professionals continue to remain a valuable resource for the ever-growing U.S. IT sector. Even when the rates of unemployment were high in the U.S. during the pandemic, thousands of IT jobs remained unfilled. Also, there is no correlation between the H-1B and green card programs that could impact green card processing times. So, there is no immediate benefit to Indian nationals, waiting in the green card queue, if the H-1B program is closed to the Indians during the upcoming H-1B cap season.
Poorvi Chothani, Esq., Managing Partner and Zeenat Phophalia, Esq., Associate Partner, both of LawQuest.