This post is about the Green Card Backlog in US in the Employment-Based category. As of 2021, about 1.2 million people are waiting to get their Green Card despite having an approved immigrant petition for many years. The wait time for many of them is several DECADES literally. The wait time for a new entrant in this queue is more than 80 years optimistically [6]. The people on this backlog are predominantly from India.

Whatever the cause behind the backlog, it is fundamentally unfair to the individuals caught up in it because it violates equality of opportunity. When a company files an employment-based immigration (green card) petition for two employees who have the same qualifications, same job, everything that matters for the job being the same, if after the petition is approved they are made to wait drastically different amount of time based solely on where they were born, which was not a factor in their employment at all, that clearly violates equality of opportunity, discriminating on an irrelevant factor, the country-of-birth. In the meantime, they are constrained by an employer-tied work visa.

Why is there a Backlog?

There exists a backlog for receiving a GC because the number of approved applicants for GC has been exceeding the available annual number of GCs. There are about 1 million GCs given out annually, out of which 140,000 are available for Employment-Based categories (EB). Within EB, there are sub-categories like EB1, EB2, EB3 each having some quota. The GC Backlog primarily exists in the EB2 & EB3 categories which are for skilled workers & professionals holding advanced degrees. Out of the 140,000 GCs, EB2 and EB3 approximately have 80,000 slots (the calculations are a bit more complex but for simplicity sake, this is good enough to understand).

To obtain a GC from these categories, an employer has to file an immigrant petition for the employee which is an elaborate & lengthy process that verifies qualifications, ensures no American is displaced, ensures the immigrant is paid the prevalent wage in that industry in that area. After this long process of 1-2 years, the immigrant petition (i-140) is approved to be able obtain a Green Card. See [1], [2] for further details on the process.

If the number of people with approved immigrant petitions in these categories exceeds their quota in a year, then they get queued up in a backlog. Makes sense so far.

However, there exists a per-country quota of 7% each year, due to which, applicants effectively get segregated by their country-of-birth. The result is that the brunt of the backlog is borne by just a couple of countries, namely India and China as of now.

All the Backlog gets borne primarily by Indians & Chinese

The current law imposes a 7% capacity limit per country for the Employment-based GCs based on the applicant’s country-of-birth. This makes the system not respect first-come-first-serve order. Remember, first-come refers to the order in which the immigrant application is made (Priority Date is the date that your immigrant petition was filed and represents your “place in line”. See [3]). This means that even if your GC petition is approved before another equally qualified person’s, you are not guaranteed to get your GC before that person. If you are from India, you certainly will not.

This effectively makes country-of-birth a factor in a supposedly Skills-based GC category. It is illegal for employers to discriminate based on nationality & ethnicity to make hiring decisions according to the Civil Rights Act, but this 7% country-cap from a bygone era violates that, forcing employers to account for this immutable factor which can have negative implications for American citizens themselves. This results in discrimination & unequal opportunities to individuals based on their country-of-birth.

India and China happen to have been the first countries to reach that 7% cap and get caught up in a disproportionately increasing backlog for them, simply because they are larger countries with more number of qualified people that meet the market demand in raw numbers compared to other countries. A few other countries also suffer from this backlog to a smaller extent. If not India, China, some other country would have been caught up in this issue. If the EU were one country, perhaps it would have faced this issue first. Similarly, if India were a continent with 28 countries, perhaps they wouldn’t have faced this issue.

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What purpose exactly is this 7% country-cap even serving?

Here’s a little detour from the main point of the article – let’s contemplate on this 7% country-cap. What seems to be the intention behind it?

Is it to enforce diversity as some would argue? Diversity of what? Diversity of race? Diversity of culture? Although I entertain these questions below, the important point is that these factors are irrelevant for a skills-based green card.

If it is to enforce diversity of race, why don’t all White countries get one single quota? Why don’t all Black African countries get one single quota? Why do Northeast Indians fall into the same quota as South Indians? As you can see, not only does the law not satisfy this purpose, it also is impossible to classify people into distinct races (rightly so).
More importantly, if indeed the intention behind these country-caps was to enforce diversity of race, it would be outright racist to discriminate based on race in an Employment-based category where race is a completely irrelevant factor.

Is it to enforce diversity of culture? Well India literally has 28 states based on distinct languages & cultures. Many other countries are also composed of people of varying cultures. On the other hand, some different countries have a very similar culture. It doesn’t make sense that the country-caps exist to enforce a diversity of culture.

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Anyway, since there are more applicants from India & China that met the market demands, a backlog builds up – and it has been building up for over a decade now for India. Now, the number of approved applicants waiting in this backlog are roughly 800,000 from India. About 75% of the backlogged people in EB category are Indians! The backlog grows almost exclusively for the countries already caught up in it. Individuals from all other countries thus bump up ahead of Indians & Chinese in the queue to get the GC. The projected wait time for a newly approved immigrant petition in 2021 for an Indian to get a GC is 80+ years, whereas that for someone from say Mongolia or France is 0 years.

Adding to the disproportionate backlog growth is the fact that dependents (spouses & children) of the applicant are counted against the GC quota for that country! Consider an average 30 year old person getting married & building a family at that stage of their life. If that person already had a GC, the spouse’s GC does not count against his/her country cap for EB GC, but if not, then it does count. Counting children & spouses, this nearly doubles the backlog for that country’s EB GC. As of today, in the EB backlog, 51% of the waiting people are dependents!

Consider two friends, one Indian, one French, both immigrants to the US. They both got approved for an EB GC in 2011 when they were young bachelors in their 20s. The French guy gets his GC immediately using up 1 seat from the French EB GC quota in 2011, whereas the Indian guy waits for many years. The Indian guy’s turn to get the GC comes up in 2020 by when he likely has a spouse & children. If the spouse is Indian too, she gets counted against the quota, thus using up 2 seats from India’s EB GC quota for year 2020, thus exacerbating the wait time for other Indians in the queue.

The wait time for a new Indian EB2/EB3 applicant is 80+ YEARS! i.e. never in their life! New Chinese applicants in EB2 have 11 years wait time, and in EB5 (investor category) they have to wait 18 years! Imagine being told to wait 18 years despite investing 1.8 million dollars in the US economy for creating jobs!

This is fundamentally unfair as the system gives unequal opportunities to immigrants, discriminating based on a factor that is immutable and irrelevant to their merit & employment qualifications i.e. country-of-birth, in the employment-based category itself.

How it Affects the Backlogged Immigrants

Many of these backlogged immigrants came to the US not knowing the excruciatingly long wait times to actually get the GC. The wait times also got worse over time. While they wait to get the green card, they have to stay on a work visa (such as H1, H2, L1, etc). While they wait for their turn to get the GC after being approved for it, the system allows them to renew their work visa every few years. H1, for example is a dual-intent visa meaning, your intention can be either to be a temporary worker or to immigrate to the US as a permanent resident. However, decades long wait time to get a GC was not anticipated when designing these visas.

While the backlogged people wait on their work visas, they face many problems & restrictions imposed by a visa.

Reduced job mobility & wage suppression:

Since their visa is tied to an employer, it severely restricts their ability to switch jobs, switch roles, get promotions. It also affects their negotiation power, allowing the employer to implicitly keep wages suppressed.

No Breaks in Employment:

Since the visa is tied to an employer, they have to remain employed at all times. Any break of more than 60 days will require them to self-deport themselves along with their whole family. You cannot take time off for child care. You cannot take time off for pursuing another hobby or interest. You cannot tend to family emergencies.
Combined with the above point, this is essentially indentured servitude aka modern-day slavery.

Taxation without representation

Despite paying full taxes, they cannot vote. They do not get to represent the community in political matters. They do not get a sense of belonging to a community.

Restrictions on working spouse:

Dependent spouses have work restrictions, and work permits may be revoked any time by changes in immigration laws.

Aging parents:

They can not bring their parents to this country to take care of them while they are on a work visa for life.

Kids being deported:

When their foreign-born kids age up to 21, they can no longer be a dependent on their parents’ immigrant petition, and must either get a work-visa and facing the backlog themselves or self-deport. Such kids who came here a young age only know USA as the country they belong to.

I have personally been affected by the broken immigration system too. You can read more about it here. However, I am relatively young & new to the GC backlog; there are people facing way worse hardships due to the GC Backlog.

Resolving the GC Backlog would likely help American citizens

The high-skilled immigrants stuck in the GC backlog on a work visa are restricted from starting their own businesses and creating jobs. Unshackling this huge skilled workforce is sure to add to the economy, create new jobs, and fuel innovation. These immigrants are future Americans-in-waiting; not unlike Satya Nadella or Sundar Pichai if they were stifled in the backlog.

Granting GCs to these approved immigrants also means they would not be tied to an employer, eliminating their indentured-servitude status, increasing their negotiating power, and effectively eliminating any implicit wage suppression in that field. This is speculation but maybe employers covertly prefer hiring foreign workers on a work visa over equally qualified American citizens because of their low negotiating power & reduced job mobility. If these immigrants are set free, this would remove that bias against American citizens if it exists.

Efforts to Resolve the GC Backlog

There are two issues that should be addressed:

1. The total number of GCs available should be increased since the current limit was set about 3 decades ago, and since then, US economy has more than doubled.
2. The distribution of GCs should be equitable without violating equality of opportunity in a merit-based category on an individual level.

Immigration Reforms are hard to come by. Increasing the total number of green cards has been historically impractical. Making the distribution of GCs equitable seems like an easy-to-pass reform but for some unexplained reasons it has been evasive too.

Bill to Remove Discriminatory Country-Caps

A bill to remove the discriminatory country-caps has been proposed in every Congress since more than a decade but it never gets enough priority. This bill was called S386 / HR1044 “Fairness for High Skilled Immigrants” in the 2019-2020 Congress which successfully passed the House and the Senate by Dec 2020 but it was too late to reconcile the differences between the House and the Senate version by the end of the 116th Congress. Having followed its progress personally for those two years, I witnessed the following opposition to it:

• Opposition by immigrants from countries other than India & China, their reason being that the wait time for them will increase from 0 years to a few years since it will equalize the wait time for all EB immigrants across all nationalities. Although one can see their opposition based on self-interest, it does not align with the right thing to do – an equitable & fair policy. Even so, the S.386 bill had several amendments providing a reservation for Rest-Of-World so that their wait time would not increase beyond 0 years for the first few years.
• Objections by Sen. Durbin for unanimous consent in the Senate. Sen Durbin blocked the passage of the bill multiple times for a year with reasons that really made no sense. On one hand, he put on a display of being sympathetic to the backlogged Indians while on the other, he made excuses to block the bill. An example opposition – Durbin: “The bill delays implementation of the policy by 2 yrs; the immigrants are suffering now. This is unacceptable, so I won’t pass the Bill now [but I will thus prolong their suffering indefinitely]”. See the senate floor debate here. It is not clear why Sen Durbin hindered the passage of the bill when he himself had cosponsored it in previous Congresses.
• Objections by a few Republican senators. A few Republican senators objected to the bill demanding some carve-out reservations for particular groups of people. Although it went against the purpose of the bill, some amendments were worked out by the sponsor of the bill, Sen Mike Lee who himself is a Republican. In general, the Republican controlled senate did not prioritize this bill to be brought for vote.

Sen Mike Lee explained this bill and the plight of the GC Backlog excellently on the Senate floor while defending it from an objection (direct link):

In 2021, this same bill has been reintroduced as the EAGLE Act. It hasn’t seen any limelight yet. Also see eagleact.info, a website advocating for this bill.

Immigration reforms in Build Back Better Act / Budget Reconciliation Bill

Biden’s Build Back Better manifesto promises to resolve the GC backlog while also giving a pathway to citizenship for undocumented immigrants. The House version of Budget Reconciliation bill that passed recently has a few effective provisions, namely:

• Provision 60002 – Recapture wasted GCs from previous years.
• Provision 60003 – Allow filing of Adjust of Status if having an approved immigrant petition without waiting for your priority date to become current, by paying an additional fee of $1500. Also allow being exempt from country-caps if waiting > 2 yrs by paying another fee of $5000.
• Provision 60004, 5 – Increased fees and more budgeting for USCIS.
• Provision 60001 – Parole for undocumented immigrants. (Does not affect employment GC backlog, but equally important for the undocumented community)

It is uncertain whether these provisions will be included in the Senate version of the bill. Even if they are, it is uncertain if the Senate Parliamentarian will allow them. As of today, the democrats have made several attempts to get provision 60001 accepted by the parliamentarian by refining it; however they have remained quiet about the provisions resolving the GC backlog for the legal immigrants.

It is unclear why democrats seem to ignore the plight of the legal immigrants stuck in the backlog. Sen Durbin, despite being at the forefront of immigration matters continues to turn a blind eye to their issue. The only explanations the backlogged community can come up with are:

• Lobbying against reforms resolving GC backlog by certain interest-groups. But who exactly are they?
• Racism?
• Not enough awareness & visibility of our issue.

The backlogged community has received some welcome attention from an Washington correspondent for Latino Rebels, Pablo Manriquez who advocates for the undocumented immigrants community – Analysis: Sympathy for Indians Stuck in Visa Backlog.

I think it is high time that this issue gets broad mainstream awareness. Systemic discrimination of a minority requires the majority to be vocal in their support for equality. It seems like a no-brainer to resolve the employment GC backlog affecting 1m+ people who are already present in the US legally and suppressing contributions to the American economy.

References:

1. Green Card for Employment-Based Immigrants: https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-employment-based-immigrants
2. The process for employment-based GC sponsorship: https://www.path2usa.com/employment-based-green-card
3. Priority Date: https://www.uscis.gov/green-card/green-card-processes-and-procedures/visa-availability-and-priority-dates
4. CATO Institute Article: Backlog for Skilled Immigrants Tops 1 Million: Over 200,000 Indians Could Die of Old Age While Awaiting Green Cards
5. Tool to estimate GC priority date becoming current: https://apps.am22tech.com/us/eb2-eb3/

See Also

• https://www.cato.org/publications/policy-analysis/immigration-wait-times-quotas-have-doubled-green-card-backlogs-are-long
• https://www.cato.org/blog/build-back-better-act-immigration-provisions-summary-analysis
• https://www.investopedia.com/h-1b-visa-to-green-card-why-tech-companies-demand-change-4580110
• https://www.forbes.com/sites/stuartanderson/2021/11/01/house-bill-keeps-immigration-measures-for-high-skilled-immigrants/
• https://www.latinorebels.com/2021/10/17/analysissympathyindianvisabacklog/
• https://www.thequint.com/us-nri-news/green-card-recapture-needs-harder-push-to-make-to-finish-line-immigrants-democrats-senate-backlog-system-united-states-build-back-better
• https://www.congress.gov/bill/117th-congress/house-bill/5376/text
• https://eagleact.info/
• https://greencardus.org/