Congress is grappling with an immigration issue that is creating hardships for thousands of people in the United States. I’ve written before about the recapture of unused visas, putting back into play highly coveted green cards that are going unused, and the topic continues to be relevant — urgent, even.
The cases of my clients, Mike and Jason, exemplify the challenges the green card backlog is creating and that recapturing unused visas would solve. While the fine details of this complicated process are difficult to fully explain here, I’ll use Mike and Jason’s circumstances to help illustrate why our broken immigration law for skilled professionals must be reformed.
Both men came to the United States from India as students more than 15 years ago. They completed their STEM degrees and entered the technology industry, using H-1B visas to work at large Fortune 100 companies in Seattle. Their respective companies applied for green cards on their behalf — an expensive, tedious, and drawn-out process of proving the employers couldn’t find American workers for those specific jobs. The applications were approved, allowing them to extend their H-1B visas beyond the usual six years. It was here that the problem started.
People born in India, China, Mexico, and the Philippines must wait a significantly longer time for an employment-based green card to become available for them than citizens from other countries. This is because the U.S. immigration law sets a 7% per-country cap on visas, which are distributed from among a total of 140,000 visas made available every year. If you’re from any of those countries, you’re competing for visas with a large number of your countrymen and women. On top of that, visas are divided into categories ranging from EB-1 (first preference) to EB-5 (fifth preference). If you are, say a Nobel Prize winner, or an “extraordinary” person who has reached the top rankings of your industry, you will likely be in the EB-1 preference category. There’s generally no wait other than how long it takes to process your case, regardless of which country you’re from. If you have a master’s degree or five years of work experience, then you are in the EB-2 or second preference category which has a waiting time generally of 10-plus years if you are born in India or China. The wait is even longer for the third preference category, and so on. There are thousands of people like Mike and Jason in the waiting line.
Immigration law requires that all employment-based visa numbers be issued annually, and any not used must be rolled into the next year’s family-based category. In the early 2000s, due to administrative errors, there were about 220,000 that went unused and were not rolled over. Reports in 2014 confirmed those numbers. At the time, some discussions were held on how to get these numbers back into the pool. I wrote about and advocated strongly on this issue, arguing that the administration should recapture them through executive order.
In the meantime, however, processes improved, and green numbers were being utilized. (Though there have always been long waiting times for citizens of the countries mentioned above). Then COVID-19 hit. All the embassies around the world and immigration offices in the country were shut down, which meant green cards in all categories could not be issued. As a result, large numbers of visas went unused.
There is the possibility of visas remaining on the table again this year. Even though U.S. Citizenship and Immigration Services (USCIS) offices and consulates have reopened, and business has resumed, there is a terrible processing backlog. And USCIS wants to issue all the available visas by September 31, 2022, before the end of this fiscal year.
However, for Mike and Jason, the issue is not that simple. In 2021, because of the aforementioned unused visa issue, the EB-2 category was longer than the EB-3 category. USCIS encouraged people like them in the EB-2 category to downgrade to EB-3 and almost everyone eligible did that immediately. The result was that the EB-3 category instantly got clogged. And the waiting continued.
In the meantime, the EB-2 preference category is now current for many in the backlog, but Mike and Jason cannot easily go back to EB-2 (where they had originally started) because of job changes that had to be reported to USCIS. That resulted in a costly delay for both men leaving them stuck right where they are.
There’s a bill currently in Congress that could resolve this. The Eagle Act seeks, among other things, to increase the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15% and eliminates the per-country cap for employment-based immigrant visas. The Jumpstart bill also sought to address the issue. And, most recently, an appropriation bill sought to do that, too. But, it’s hard to say if they will pass at all. While some in Congress do understand why we need these measures, when it comes to immigration, whether in the House or the Senate, lawmakers don’t seem to reach the finish line.
People like Mike and Jason are assets to the American workforce, and keeping them here is beneficial to the nation’s floundering economy. Their employers spent significant amounts of money — on average about $15,000 — to apply for a green card, and renew their H1Bs (requiring additional funds), all the while being unable to promote them because such changes could put all their immigration work in jeopardy. This is not good for the businesses, and it’s not good for the economy.
And it’s certainly not good for Jason and Mike. These men have brilliant minds. Moving between jobs within the company or even to another company entirely are options they have had to grapple with for the past decade. Dream jobs have come and gone, but they have not been able to make their dreams come true.
There is a direct impact on their families, too. In 2015, President Barack Obama established a regulation granting the spouses of H1-B visa holders authorization to work in this country. However, issuing and renewing those work permits also got caught up in the COVID-19 backlogs.
Additionally, Mike has a child who is about to turn 21. Once that happens, he will be ineligible for inclusion on the pending green card application. So that creates additional stress for Mike, who has contemplated leaving the United States for Canada as many others have done.
So, what can we do? Without Congress passing a bill that allows a recapture of all unused visas and a reform of quota allocation or a simple removal of the quotas, there will not be a real solution. It is likely that you know someone affected — whether a stuck employee or a business that employs them. So, the powerful thing you can do is support their voices and advocate for change.
Tahmina Watson is the founding attorney of Watson Immigration Law in Seattle, where she practices US immigration law focusing on business immigration. She has been blogging about immigration law since 2008 and has written numerous articles in many publications. She is the author of Legal Heroes in the Trump Era: Be Inspired. Expand Your Impact. Change the World and The Startup Visa: Key to Job Growth and Economic Prosperity in America. She is also the founder of The Washington Immigrant Defense Network (WIDEN), which funds and facilitates legal representation in the immigration courtroom, and co-founder of Airport Lawyers, which provided critical services during the early travel bans. Tahmina is regularly quoted in the media and is the host of the podcast Tahmina Talks Immigration. She is a Puget Sound Business Journal 2020 Women of Influence honoree. Business Insider recently named her as one of the top immigration attorneys in the U.S. that help tech startups. You can reach her by email at email@example.com, connect with her on LinkedIn or follow her on Twitter at @tahminawatson.