CRS Report Addresses the Employment Based Immigration Backlog

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The employment-based immigration backlog for lawful permanent residence in the United States is expected to double by 2030, according to a Congressional Research Service (CRS) report published on March 26, 2020. The report provides an analysis of the projected priority date wait times for three employment-based immigration categories — EB1, EB2 and EB3 — along with examining potential legislative solutions to the problem.

Nearly a million foreign nationals and their relatives are awaiting lawful permanent residence despite having their petitions approved by the U.S. government. Insufficient visa numbers are preventing them from applying for employment-based green cards. According to the CRS, there are two prospective immigrants joining the backlog for every green card being issued.

The report points out that the backlog is likely to put U.S. employers at a “disadvantage” when it comes to “attracting highly trained workers.” There is a seven percent per-country limit on the allotment of visa numbers in these three categories which has led to long wait times for foreign nationals from India and China. These two nations have the largest number of employment based immigrant visa petition beneficiaries.

The CRS said that Indians face the longest projected wait times for a visa number, amounting to decades before such persons can technically file an application to adjust their status for permanent resident status. The prospective immigrants who are most adversely impacted by the country cap system are hundreds of thousands of highly skilled Indian professionals who remain in perpetual H-1B visa status. U.S. employers file far more employment based immigrant visa petitions for Indian employees than there are visa numbers available.

The Senate is considering S. 386, a bill that would remove the 7 percent per-country cap over a three-year period. Its supporters claim the change would ensure fairer treatment of all prospective immigrants regardless of their national origin. Critics argue the bill would enable workers from a few nations to monopolize employment-based immigration.

The CRS examined the 10-year outcome of removing the ceiling on EB1, EB2 and EB3. It found that S. 386 would only slightly reduce wait times for Indian and Chinese immigrants in the backlog. Maintaining the per-country quotas “would substantially increase” their wait times while continuing to allow other foreign nationals to obtain permanent resident status quickly. The report determined that enacting S. 386 would not make much of a difference to future backlogs because the legislation does not alter current visa number quotas allocations.

The report presents several legislative solutions that Congress could consider to address the employment-based immigration backlog. These include keeping the current per-country ceiling, removing the ceiling as proposed under S. 386, increasing the number of employment based immigrant visas available, or decreasing the entry of foreign nationals in the employment-based immigration pipeline. Structural changes to the entire system are also possible.