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Per-Country Cap Reform
Priority Bill Spotlight

Per-country caps on green cards create decades-long backlogs, making the immigration system less efficient & less fair. The bipartisan EAGLE Act would help fix that by reforming the caps.

Per-country caps have created extensive backlogs that leave immigrants and their families waiting years to receive their green cards simply because of their country of origin. This restricts their ability to work, travel, and contribute, and creates significant challenges for their families. It also makes the U.S. less attractive to global talent, hindering our competitiveness. Congress should pass per-country cap reform, like the bipartisan EAGLE Act, to ensure fairness and begin reducing the green card backlogs.

"Per-country caps are numerical limits on the issuance of green cards to individuals from certain countries. "

Per-country caps force immigrants to wait decades for green cards, simply because of their country of origin

Applying for lawful permanent residence (a “green card”) after an individual meets all of the requirements should be a quick and easy process. In some countries, like Canada, it can happen in less than a year. But in the United States, backlogs created by “per-country caps” on green card issuances force some immigrants to wait years or even decades after qualifying to be issued green cards, whether they are applying from abroad or adjusting status from within the U.S. (the vast majority of employment-based immigrants).

Per-country caps are numerical limits on the issuance of green cards to individuals from certain countries. Immigration law provides for approximately 140,000 employment-based green cards to be issued each year. However, only 7% of those green cards can go to individuals from a single country annually. If the number of individuals being sponsored from a single country is greater than 7% of the annual available total, a backlog forms, and the excess approved petitions are not considered until a visa becomes available and their petition falls within the initial 7% per-country cap.

These country-specific caps have created extensive backlogs, forcing individuals from certain countries—primarily India and China in the employment-based categories—to wait much longer than average to receive their green cards, simply because of their country of origin. Right now, more than 960,000 people, including dependent spouses and children, are stuck in the employment-based green card backlog. In some categories, applicants who began the process in 2010 are just now able to file formally, meaning they may have waited more than a decade to join their families, even though they were already qualified to do so. These wait times are projected to extend up to 50 years if the law is not changed.

More than 960,000 immigrants and their families are stuck in green card backlogs
Count of individuals and estimated count of dependents waiting for employment-based green card availability

 EB-1 (Priority)1EB-2 (Professional)EB-3 (Professional and Skilled)EB-3 (Other)EB-4 (Special Immigrants)EB-5 (Investors)2Total Principal ApplicantsTotal Individuals in Backlog (including dependents) 3
China032,0196,877698021,16560,759141,603
El Salvador000012,096012,09615,725
Guatemala000014,934014,93419,414
Honduras00009,57009,57012,441
India0310,17770,71216800380,889769,269
Mexico00002,66202,6623,461
Vietnam00000338338980
Total0342,19677,58986639,26221,503481,416962,893

Source: Department of Homeland Security, “Form I 140, I 360, I 526 Approved Employment Based Petitions Awaiting Visa Availability By Preference Category and Country of Birth As of April 21, 2021,” https://www.uscis.gov/sites/default/files/document/reports/EB_I140_I360_I526_performancedata_fy2021_Q1_Q2.pdf.
1Employment-based immigrants apply through one of five “preference” categories. The worldwide limit on employment-based immigration (140,000) is apportioned among these five preference categories according to immigration law. Prospective immigrants qualify for a preference category based on their skills, education, employer sponsorship, or level of investment in a U.S. business. A full description of the preference categories is available from USCIS at https://www.uscis.gov/working-in-the-united-states/permanent-workers.
2As of the date of publication, Congressional authorization for the EB-5 Regional Center Program has lapsed.USCIS has said that it “will not act on any pending petition or application of these form types that is dependent on the lapsed statutory authority until further notice.”
3Total backlogged individuals is calculated as principal applicants plus estimated number of dependents (calculated using the dependent multiplier). The dependent multiplier represents the average number of dependents for that preference category, per the DHS’ “dependent calculator,” available here.

"This broken system makes the U.S. less attractive to foreign-born talent and hinders our global competitiveness."

Green card backlogs keep families apart, hurt American businesses, and hinder our global competitiveness

Immigrants already living in the U.S. who are applying to adjust status from a temporary visa must continue to renew their temporary status until the green card is available, which makes changing jobs or receiving a promotion exceedingly difficult. Meanwhile, their families also face harmful limitations, including the risk that their children could “age out” of their immigration status and be exposed to risk of family separation or deportation. And U.S. businesses looking to hire or retain talented individuals for jobs that cannot be filled domestically are limited from sponsoring the qualified workers they need. Studies show that restrictions on highly-skilled immigration and barriers to hiring needed workers push companies to move jobs and production offshore.

This failed system makes the U.S. less attractive to global talent and hinders our economic competitiveness. A survey of individuals waiting in backlogs showed that 32% were seriously considering returning to their country of origin within the next year, while an astonishing 70% reported they were considering moving to a more welcoming country within the next year. These individuals have been living and working in the U.S. for many years; even though they have built lives here, the waiting for them has become so unbearable for them that they will abandon all they have invested in the U.S. to move to another country that will allow them to thrive.

Meanwhile, fewer international students are choosing to enroll in U.S. colleges and universities over the last four years, and other countries are working hard to recruit international students with welcoming policies. International students graduating from U.S. colleges and universities are critical to the U.S. workforce, particularly in STEM fields and emerging industries, where they make up a significant share of workers. Sacrificing our role as the top destination for international talent will only further undermine our economic leadership.

"The EAGLE Act would eliminate per-country caps on employment-based green cards (with some guardrails) and raise the caps for family-based green cards to 15%."

The bipartisan EAGLE Act would reform per-country caps and help clear backlogs

Representative Zoe Lofgren (D-CA) and John Curtis (R-UT) have introduced the bipartisan Equal Access to Green cards for Legal Employment (EAGLE) Act (H.R. 3648). The EAGLE Act would eliminate the per-country cap on employment-based green cards and would raise the per-country cap for family-based green cards to 15%.

The bill is an updated version of the Fairness for High-Skilled Immigrants Act (H.R. 1044), bipartisan legislation that passed both the House and the Senate last year with unanimous consent, but which was never reconciled to be sent to the President for signature. The new version includes numerous bipartisan compromises and amendments negotiated in the previous Congress, meaning that the bill should enjoy broad bipartisan support in this session, too.

The EAGLE Act reserves some green cards and establishes a complex transition period before the employment-based per-country cap is completely eliminated, to ensure that immigrants from lower admission countries do not face significantly increased wait times as a result of the bill.1

The bill also includes language to protect families and address challenges brought on by the backlogs, including allowing individuals to file for adjustment of status before a green card is available to them if they have waited two years or more for an available visa. Filing early to adjust would allow individuals to secure travel authorization and portable employment authorization so that they could change employers. The bill ensures that children remain eligible regardless of their age when the visa becomes available, helping keep families together.

In addition to per-country cap modernization, the EAGLE Act also introduces new oversight and reporting requirements, and new fees for the H-1B highly- skilled temporary worker program, along with increased protections for U.S. workers in both the temporary and permanent resident immigration application processes.2

Congress should pass the EAGLE Act to keep families together and boost our economy

Per-country cap reform alone will not eliminate the green card backlog, but it is an urgent and necessary first step. Congress must also increase the number of green cards available each year, so that more people can move out of the backlog than are added in.

To do this, Congress should act to recapture green cards that have gone unused in previous years. Congress can also act to expand and modernize immigration channels so that more green cards can be issued, and take steps to support families while the backlogs are drawn down, such as passing legislation to protect children from aging out of status.

The per-country caps have made the immigration system less efficient and less fair. The bipartisan EAGLE Act is a commonsense solution to ensure that individuals and families aren’t forced to wait longer simply because of their country of origin, and would be a critical first step in reducing backlogs.

Congress should pass the bipartisan EAGLE Act and send it to the President’s desk immediately.

Get in touch with us:

Andrew Moriarty

Deputy Director of Federal Policy

Notes

  1. During the transition period, a share of visas (30% in the first year, then steadily decreasing to 5% for the seventh, eighth, and ninth years) are reserved for individuals from countries who are not from the top two sending countries, as well as 5.75% of visas for family members and other new arrivals. The Act also reserves 4,400 EB-3 visas for workers in shortage occupations (which currently includes physical therapists, nurses, and people with exceptional ability in the sciences and arts).
  2. The new bill adds additional requirements, fees, and penalties for the Labor Condition Application process, and requires employers petitioning for an H-1B employee to post information about the job on a Department of Labor website. It also expands H-1B employer compliance, requiring employers to testify that they have not targeted their advertising or recruitment solely at H-1B visa holders. Furthermore, employers that have more than 50% of their workforce on H-1B or L intracompany transferee visas would be prohibited from petitioning to sponsor additional H-1B employees. And the bill would end the use of “B-1 in lieu of H-1B,” a practice where H-1B-eligible individuals are allowed to work in the U.S. temporarily while employed by a foreign company.
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