Faced with decades-long waiting period for their green cards, high-skilled immigrants in the US are hoping quick enactment of The Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) will help them overcome a restriction often described as the most irrational provision in American immigration law—the per-country limit.

The law will serve as a massive boost for high-skilled Indian immigrants currently facing a farcical waiting period of 119 years and 20 years for their EB-2 and EB-3 green card applications respectively.

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About the Per-Country Limit

Annually, the US makes 140,000 EB-category green cards available to immigrants from all over the world, with around half allotted to dependents and around 70,000 visas available for high-skilled immigrants.

Further, the Immigration and Nationality Act mandates no single country can exceed 7% of the combined total cap of family and EB-category visas available for immigrants. This is the per-country limit.

Impact of the Per-Country Limit

This limit means the applicant’s place of birth, and not his/her qualification or capacity to contribute to the US, determines the waiting period.

Further, it serves no economic purpose, is not meritocratic, impairs the ability of American employers to attract foreign talent, and is certainly an important factor behind the surge in skilled Indians preferring Canada over the US.

Painful Wait for the Green Card

Having a green card application in process does not, in any way, help the applicant avoid restrictions imposed on non-immigrant visa holders.

Such an individual cannot start a business in the US, cannot stay outside the US for long durations, or even switch jobs easily since employers are wary of the uncertainty involved in hiring a non-immigrant visa holder.

The founder of AppDynamics had to wait for seven years to start his business because he had to wait for his green card to be processed. Today, AppDynamics employs 1,400-employee firm and was acquired by Cisco in January 2017 for $3.7 billion.

Had this scenario played out in 2019, chances are high America’s loss would have been the Canadian tech sector’s gain.

Per-Country Limit and the Waiting Period

As per the US Department of State’s February 2019 Visa Bulletin, the priority date— the date on prior to which those with pending applications become eligible to receive the green card— of EB-2 applicants from India is April 2009.

The real issue here is not the long waiting period. Rather, it is the fact that applicants have to wait for a reason unrelated to his/her skills or eligibility—the number of cases in the queue compared to the per country quota.

It can be safely said that an Indian Ph.D. holder staring at a century long wait for the EB-2 green card is likely to explore alternate options. Presuming some EB-2 applicants refile under the EB-3 category, the aggregate waiting period will be around 58 years.

Canada, in contrast, offers a six-month route to permanent residence for foreign skilled workers irrespective of one’s country of origin.

American employers, already hit by the frequent changes in visa rules and regulations, are likely to struggle to attract foreign skilled workers for even short durations since the route to permanent residence is blocked by the huge backlog and per-country limit.

The Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044)

In the proposed law, the per-country limit for EB-category visas will be eliminated and the per-country limit for family-based immigrant visas will be increased from 7% to 15%.

The bill proposes a transition period of three years in which a fixed percentage of EB-2, EB-3, and EB-5 visas will be reserved for applicants from countries other than the two countries with the largest numbers of approved petitions.

In FY 2020, 15% of immigrant visas will be reserved followed by 10% for FY 2021 and FY 2022 respectively.

To ensure the law does not unfairly penalize applicants from countries not exceeding the 7% limit, the bill provides that waiting period for an applicant with an approved petition will be calculated as if the law was never enacted.

This means applicants from countries not exceeding the 7% limit will not have to wait longer just because the per-country cap has been lifted.

Post the end of the transition period, EB-category visas will be issued on first come, first served basis. By FY 2023, the backlog of EB-3 applications from India would have been cleared, leaving around 290,000 EB-2 applications.

Considering that applications will continue to be filed and processed every year and the possibility of some EB-2 applicants refiling under EB-3 category, the EB-2 backlog is likely to be cleared by FY 2027 or 2028.

For family-category applicants, the per-country limit is being raised, which means applicants from Mexico and the Philippines will benefit the most.

No per-country limit for EB-5 applications will be very good news for Chinese applications, and this law may cause a resurgence in Chinese interest in the EB-5 program. However, other countries may not benefit a lot considering that 90% of all pending EB-5 petitions have been filed by Chinese investors.

The per-country limit is hurting immigrants as well as employers and its elimination may mark an important step towards boosting American growth and progress through influx of more and more highly-skilled immigrants.

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