On Jan 16 2019 by Lisa T. Felix

Green Card Purgatory for Highly Skilled Immigrants

If you’re like me, when Philadelphia Magazine publishes its 50 Best Restaurants list, “meal prep” takes on a new connotation as I plan my fantasy year of dining and start making reservations. Once you’ve made your picks from this month’s issue, I urge you to turn to the article by Gina Tomaine “The Immigrant on My Couch.” The article explains the professional challenges faced by her highly qualified, American-educated future brother-in-law from India in the “Buy American, Hire American” era. Tomaine’s article is well written, well researched, and well documented. Her future brother-in-law’s story is a compelling example of how, in the crackdown on illegal immigration, the United States is suffering by not keeping up with economic and technological reality when it comes to regulating and reforming legal immigration. Spoiler alert: Tomaine’s future brother-in-law left the U.S. with his two graduate degrees (a master’s electrical and computer engineering and an MBA) and his experience in our tech sector and was quickly swept up by a burgeoning tech start-up in Singapore.

Like his younger brother, Tomaine’s future husband, Anush, a Ph.D.-level researcher at the Children’s Hospital of Philadelphia, represents another major group of talent and drive that faces unreasonable and unproductive obstacles to legal migration. While legal, their path is disheartening – some say soul crushing – because of systematic delays and the uncertainty of a chaotic approach to immigration policymaking.

What separates Anush from his brother and from tens of thousands of other brilliantly qualified and experienced scientists, researchers, businesspeople, doctors, and others are two lucky twists of fate. He happened to be born in a small country (in our green card allocation system country of birth matters, not country of citizenship), which would have made an important difference, if not for the even bigger impact marrying a U.S. citizen has on a foreign national’s immigration situation.

As a very brief overview, the path to a green card has two main parts: Part One requires the foreign national to demonstrate eligibility for a green card based on a family-based or employment-based qualification. Part Two is the administrative step in which the green card is actually issued. If the individual is already in the United States, the person “adjusts” from their temporary status (such as a work visa) to permanent resident status. When the intending immigrant is outside the United States, Part Two is handled at an American embassy before the individual is permitted to enter the country as a permanent resident.

Access to and completion of Part Two, which culminates with the issuance of the actual green card, is controlled by a quota system set forth in the Immigration and Nationality Act. Under Section 201, the annual quota for employment-based “preference” immigrants is 140,000, including the sponsored worker plus each of their immediate family (spouses and children) needing green cards. This number was established in 1990, before the internet, before GPS, before cell phones, when the Human Genome Project was just getting started. The number is fixed, not matched to national or worldwide economic growth, to social or technological mobility, nor to changing needs in the labor force. When it comes to securing their chosen employees for permanent employment U.S. employers in every sector are subject to this quota.

The 1990 quota has proven wholly inadequate to respond to U.S. employers’ demands, even during the economic downturn of the late aughts, let alone now, as the economy is at full employment capacity.

Part of the issue is that the annual allocation of 140,000 is limited for any given country to 7% of the total (i.e. 9,800). The country to be counted is the country of birth, not citizenship. (That’s why Tomaine’s future husband Anush, having been born in Rwanda, would have not had as long a wait, even if he was depending on his employer’s sponsorship for his green card, as he would have had he been born in India, like his brother.) American employers, on the other hand, assert that they need to be able to hire the “best and the brightest,” regardless of their country of birth, to remain competitive in a worldwide market and to keep their businesses in the United States.

This results in the “Eternal Green Card Applicant,” a person whose American employer has sponsored them for permanent residence and who has satisfied the job-related qualification requirements of Part One, but who may have to wait a decade or more using a “temporary” visa before their green card is available.

The United States Citizenship and Immigration Services (USCIS) estimated (July 2018) that over 29,400 green cards are pending at the Part Two stage, some having begun the process as far back as 1998. The vast majority are from the world’s most populous countries, India and China, for whom the 9,800 annual quota cannot accommodate American employers’ demand.

India, with its booming technology sector and substantial enrollment in American higher education, is by far the most oversubscribed. Over 19,600 applicants are waiting to complete Part Two. Even green cards for the top two “preference category” employees – those with master’s degrees or equivalent amounts of post graduate experience, those with Ph.D.s, medical doctors, software engineers, your kids’ college professors, hugely successful entrepreneurs – all are backlogged in the quota system for two to ten years. Furthermore, the USCIS has not accepted new filings from those born in India – not even those with the highest of qualifications – for nearly a year.

The system is jammed and it requires a legislative fix, by a Congress that is also jammed. But it’s not for lack of ideas.

As a partial response, there have been back door tweaks to help long delayed applicants. The H-1B visa (the temporary visa most commonly associated with highly skilled employment) is normally available for up to six years. But with the green card line taking 10 or more years, the American Competitiveness Act of the 21st Century made it possible to stay on the H-1B visa indefinitely if the individual has completed Part One of the green card process, and cannot complete Part Two because of the quota backlog.

In 2016, a Congressional Research Service report “Numerical Limits on Permanent Employment-Based Immigration: Analysis of the Per-country Ceilings” identified several other options:

  • lifting the per-country cap on the top two preference categories;
  • categorically lifting the country caps on all of the employmentbased preference categories, and allowing those first in line to move forward no matter where they were born. This would give welcome relief to those India-born applicants waiting for over ten years.;
  • reallocating the 50,000 green card spots reserved under the worldwide quota for “diversity” applicants, thereby supporting a system based more on skills and contributions than on the goal of geographic diversity; and
  • allowing specially qualified applicants to file and process their green card applications outside the numerical limits. This has been posed to specifically benefit foreign students who have obtained a graduate degree at the level of master’s or higher in a STEM field (science, technology, engineering, or mathematics) from a U.S. institution.

Lastly, an option supported by many immigration reformers is excluding family members from the count. This would preserve the idea that the employment-based quota of 140,000 is available for the actual workers, as the system appears to have been meant under a plain reading of its title.

So while I’m planning my next meal, and Anush and Gina are planning their wedding, reform of the numerical quota system for green card allocation would allow American employers to plan and choose their employees from the best and brightest the world has to offer. Reform would allow Eternal Green Card Applicants some peace of mind knowing there is an end in sight to their years of vetting, processing, and waiting.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

Reprinted with permission from the January 16, 2019 edition of the The Legal Intelligencer© 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.