H-1B Visa to Green Card Backlog: Why Tech Companies Demand Change

Unfortunately for the U.S. tech industry, the permanent resident or green card process is designed to reunite families, not satisfy tech's thirst for foreign talent.

More than 65% of green cards granted in the 2017 fiscal year went to family members of U.S. citizens; just about 12% went to immigrants and their accompanying families for employment reasons, according to official figures.

However, for companies looking to retain foreign workers on a permanent basis, sponsoring green cards is the only way. The H-1B temporary worker visa, which gets the talent into the U.S. to work legally, is valid for a maximum of just six years. 

Per-country limits are also restricting the flow of tech employees to the U.S. from nations like India and China and allegedly hurting the competitiveness of American firms.

This has prompted several companies, including Cognizant Technology Solutions Corp. (CTSH), Deloitte LLP, Microsoft Corp. (MSFT), Texas Instruments Inc. (TXN), Infosys Ltd (INFY), Hewlett Packard Enterprise Co. (HPE), IBM Corp. (IBM) and Amazon.com Inc. (AMZN), to lobby on the issue and push for reform.

The green card process is famously complex, but it’s even harder for citizens of highly populated countries to get one of the 140,000 employment-based green cards distributed each year, even if they are eligible.

Green-card applicants are divided into five preference categories; most tech workers with advanced degrees fall into the second preference, EB-2, category. Since each country can receive no more than 7% of the total number of green cards available in a single category each year, this results in a huge backlog that keeps growing. 

Indians with advanced degrees looking to be permanent residents in the U.S. are looking at a wait time of 151 years. This estimate from the Cato Institute is based on current rates of visa issuance and number of applicants.

Those seeking a green card must join a queue and wait for a visa to become available. According to the latest Homeland Security Visa Bulletin, Indian nationals in the EB-2 category whose initial petitions were received after May 22, 2009, are still waiting to file their documents and apply. Chinese workers in the same category are faring only slightly better – those with petitions received earlier than September 8, 2015, can send in their applications.

According to a May 2018 report from the U.S. Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security (DHS), there were 306,601 Indians with approved petitions waiting to apply for an employment-based green card and around 70% were placed in the EB-2 category. This figure did not include family members of those waiting, whose visas also count against the cap. Immediate family members of H-1B visa holders can receive an H-4 visa, which is linked to the time limit of the H-1B.

Per-country limits on green cards were introduced by Congress in 1965 to combat racial bias, but this has now created an epic bureaucratic quagmire that hurts tech firms and makes life for their employees very stressful.

More than 80% of employment-based green cards go to people already in the country adjusting their status from temporary worker visas. This means employees currently working in U.S. are often stuck in limbo for decades as their companies are forced to request extensions on their temporary visas every few years.

Microsoft President Brad Smith has called per-country limits unfair and advocates increasing the number of employment-based green cards “to further reduce the backlog and recognize the needs of the modern economy for the world’s top talent.”

"Our colleagues in the green card backlog have waited far too long for action, and they and their families are paying the price," he wrote on the company blog in June.

Todd Schulte, the president of lobbying group FWD.us — whose founders include Facebook Inc. (FB) CEO Mark Zuckerberg and Microsoft co-founder Bill Gates — has said the government needs to "eliminate the green card backlog to help high-skilled immigrants become citizens."

The uncertainty that has surrounded the the H-1B and H4 visa programs has not helped matters either, say tech firms. Companies are afraid that foreign talent will seek opportunities in other countries, thereby hurting American competitiveness. An increase in the number of tech workers emigrating to Canada has been one of the consequences of the crackdown on H-1B visa abuse.

In August, Business Roundtable, an public policy-focused group of chief executives of U.S. companies, wrote a letter to Homeland Security Secretary Kirstjen Nielsen. It noted how frequent changes in immigration policy hurt both those waiting for green cards and the businesses that sponsor them. 

“Due to a shortage of green cards for workers, many employees find themselves stuck in an immigration process lasting more than a decade. These employees must repeatedly renew their temporary work visas during this lengthy and difficult process,” said the group whose members include the chief executives of Apple Inc. (AAPL), Salesforce Inc. (CRM), Qualcomm Inc. (QCOM), Oracle Corp. (ORCL) and IBM. “Out of fairness to these employees – and to avoid unnecessary costs and complications for American businesses – the U.S. government should not change the rules in the middle of the process.”

The Trump administration has made it clear it wishes to reduce extended-family chain migration and favors merit-based immigration. Earlier this year, it supported a Republican immigration bill that would have cut the number of family and diversity green cards distributed and transferred some to immigrant workers. 

That bill failed miserably in the House, but the Fairness for High-Skilled Immigrants Act, co-sponsored by Rep. Kevin Yoder (R-Kan.), which aims to eliminate the per-country cap, has received significant attention and lists 329 co-sponsors from both parties. 

Language from the bill, which is currently in limbo, was added to the 2019 fiscal year Homeland Security funding bill by Yoder, who also happens to chair the House Appropriations Subcommittee. 

“Although H.R.392 has taken a new form, there is still significant political and corporate interest in making it law,” said OpenSecrets, which noted that a high proportion of lobbying in favor of the bill was done by tech companies. “If its advocates are successful, they could change the demographics of legal immigration indefinitely.” It's not known how the bill will fare in the next Congress. Yoder will be replaced as subcommittee chair when control of the House passes to the Democrats in 2019.

Despite the lobbying efforts of American companies, it’s unclear if reform is on the horizon. Opponents say removing the per-country cap would unfairly and dramatically increase wait times for citizens of other countries instead of solving the problem. There is also concern that Indian nationals would flood the system and receive the majority of visas for decades, just as has been the case with the H-1B visa program. 

David Bier, an immigration policy analyst at the Cato Institute, isn't optimistic about the bill's prospects. “I think the country cap is much more likely to be removed through an appropriations bill than from a standalone bill like the Fairness for High Skilled Immigrants Act, but I think both bills have low probabilities of success given the stalemate in Congress on immigration issues generally,” he said in an email. “It would take a grand bargain on immigration to keep the bill in the appropriations package – something that is increasingly unlikely in our current political environment.”