It is likely fewer than 100 people in America understand the provision. But we know tens of thousands of people’s lives have been made worse by it. What is this obscure provision of immigration law that affects so many but is understood by so few? It’s called the “per country limit.”
When employers recruit at U.S. universities they generally find one-half to two-thirds of the graduates in science, math and engineering fields are foreign nationals. Foreign nationals with masters degrees or higher are important contributors to product development, patent filings, startups and company expansions in America. But the per country limit results in waits of many years for green cards if they want to make their careers in America, causing many to leave – or consider leaving – and taking their skills and education with them.
Two recent reports by the National Foundation for American Policy (NFAP) explain how the per country limit – combined with the low 140,000 annual employment-based quota – could lead an Indian national applying today in the most common employment-based preference to wait up to 70 years for a green card. The research finds the solution for skilled immigrants, ultimately, is an exemption from the green card quota for international students who graduate from a U.S. university with an advanced degree in science, technology, engineering or mathematics (STEM).
The per country limit restricts the number of green cards awarded to any one country to 7 percent of a preference category, which has a disparate impact on professionals from large countries, particularly India and China, causing them to wait longer for permanent residence than nationals of other countries. In practice, this has meant that only 2,800 Indians each year are permitted green cards annually in the employment-based third preference (EB-3).
With fewer than 3,000 Indians admitted in the category each year and an estimated potential backlog of 210,000 among Indian professionals in the category, the recent NFAP report is able to conclude an Indian sponsored today could wait 70 years for a green card. Even if the backlog of Indians in the EB-3 category were half as large, the wait time would still exceed 30 years. A Chinese immigrant sponsored today in the EB-3 category could wait two decades.
In other words, a company could file petitions for green cards on the same day for two engineers with identical credentials, one from India and the other from Belgium. Because of the per country limit, the engineer born in Belgium may receive his green card in 5 years in the employment-based third preference category (EB-3), while it could take decades for his colleague from India to receive a green card.
In the EB-2 (second preference) category, which has somewhat higher educational requirements, due to the per country limit the wait times are 6 to 8 years for a newly sponsored Indian or Chinese immigrant, but there is basically no wait for professionals from other countries.
Policymakers are starting to appreciate that no national interest is served by the U.S. government, in effect, discriminating in favor of one nationality over another. Certainly if individual employers announced they intended to limit how many people of Indian or Chinese origin they planned to hire or sponsor this year the companies would face public criticism or even legal action.
H.R. 3012, a bill by Rep. Jason Chaffetz (R-UT) and Judiciary Committee Chair Lamar Smith (R-TX), would phase out the per country limit for employment-based immigrants over a four-year period. By the fourth year the per country limit would be eliminated entirely for employment-based immigrants. The bill would also raise the per country limit on family-based immigrants from 7 percent to 15 percent, which would help those waiting the longest for green cards in family categories, particularly from Mexico and the Philippines.
H.R. 3012 is slated to be marked up in the Judiciary Committee as early as this week. In a previous Congress, a bill to eliminate the per country limit for employment-based immigrants sponsored by Rep. Zoe Lofgren (D-CA) and Rep. Bob Goodlatte (R-VA) did not become law.
Eliminating the per country limit could reduce the typical wait for Indians applying today in the EB-3 category from 70 to 12 years. While 12 years is still too long, it would be a welcome reform that would provide green cards for Indian and Chinese professionals waiting the longest (often now able to stay in the U.S. in H-1B status only due to annual waivers/renewals).
In the EB-2 (employment second preference) category, wait times would be equalized at about two to three years without regard to country of origin (as opposed to potential waits of 6 years or more for Chinese and Indian nationals in the EB-2 category).
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