Congress introduced the U.S. Citizenship Act of 2021, the text for President Joe Biden’s proposed immigration reform legislation, on February 18, 2021. Introduced simultaneously in both the House and Senate, these bills are the most comprehensive immigration reforms attempted in the United States since the 2013 Border Security, Economic Opportunity, and Immigration Modernization Act (the “Gang of Eight” bill). New and updated provisions in the bill would significantly affect high-skilled legal immigration of foreign workers, a necessary step forward in reforming our legal immigration system. While we wait to see how this legislation progresses, this explainer highlights some of the bill’s proposals for high-skilled legal immigration and identifies additional areas in need of reform.
The U.S. Citizenship Act of 2021 targets improvements in the U.S. employment-based high-skill immigrant visa system, mainly by exempting certain groups from annual caps, adding back unused visas from past years, and increasing some categories. For example, the bill seeks to exempt foreign doctoral students who graduate from U.S. universities in Science, Technology, Engineering, and Math (STEM) fields from annual numerical limits and extends the “dual intent” 1
provision to international students on F-1 visa at an institution of higher education. Therefore, STEM students under the F-1 visa category could directly apply for permanent residency upon graduation and, at least for doctoral students, would not be subject to immigrant visa caps. To assess barriers to accessing U.S. employment opportunities, a provision in the bill directs multiple agencies to conduct an analysis on recent employment history of immigrants and refugees who obtained academic degrees and professional credentials abroad. This assessment will help develop policy recommendations that may help immigrants and refugees obtain skill-appropriate employment opportunities in the United States.
The bill increases immigrant visas in the employment-based third preference category from 10,000 to 40,000 for “other workers” who do not fall into the skilled or professional workers classification, while providing employment authorization for spouses and working-age children of foreign workers on H-1B non-immigrant temporary visas. Children of H-1B workers are also protected from “aging out” if the child accompanies the primary visa holder and acquires their nonimmigrant status before turning 18 and are awaiting green cards. Presently, no such policy exists to prevent dependents of H-1B workers, and children are at the risk of losing eligibility for permanent residency at 21 years old if their H-1B primary visa holder parent is unable to acquire a green card in time due to backlogs. These dependents, some of whom immigrated to the United States as kids, are required to convert to another immigration status, leave the country, or remain undocumented; they would have to qualify for a green card on their own in the future.
The bill introduces provisions to reduce the backlogs in our current immigration system by eliminating per-country caps for employment-based visas and exempting spouses and children from counting toward the overall employment-based visa caps. Further, anyone who has been waiting for a green card for more than 10 years would be eligible to immediately apply and would not count against the annual cap. Currently, foreign workers applying for permanent residency are subject to a 7% per-country cap, in addition to overall annual and per-category caps, regardless of the demand for green cards from a country or the size of the country in question. This policy has created an unprecedented backlog in employment-based green cards, particularly for nationals from India and China. Some estimates suggest that the green card backlog of skilled immigrants is likely to exceed 2.4 million by 2030, with Indian nationals having the longest wait times of 89 years for a green card to be available.
The bill would raise the ceiling of admissions for the employment-based visa from its current cap of 140,000 to 170,000 per year, by adding 30,000 additional visas in the “other workers” visa category. The increase in employment-based visas is significantly lower than those allocated to family-based visa sponsorship, which goes up from 226,000 to 480,000 annually, a 112% increase. The bill would also “recapture” all the unused employment-based visas from fiscal years 1992 to 2020.2 It also introduces a new employment-based pilot program to annually admit an additional 10,000 qualified foreign workers for local and regional economic improvement. However, since the pilot program requires labor certification, it will preclude immigrants looking to start their own businesses from using the program and will only benefit foreign workers employed at U.S. businesses.
The administration is further aiming for a more flexible legal immigration system by directing the secretaries for the Department of Homeland Security and the Department of Labor to temporarily decrease the number of immigrant visas in the second and third employment-based immigration preference categories when the United States is facing high rates of unemployment in a particular area or occupation sector. But these categories are already subject to individual labor certification requirements to show that there are not enough U.S. workers available for the sponsored jobs, so it is unclear how this change would affect U.S. employment rates. Moreover, the bill would authorize the DHS secretary, in consultation with the DOL secretary, to consider a wage-based allocation of temporary visas for the H-1B category and any other nonimmigrant category deemed appropriate and prioritize issuing visas to foreign workers with higher wages. These last two provisions echo Trump administration policies that are still in effect.
The legislation’s goal to reform America’s permanent employment-based immigration system by increasing the overall visa cap, eliminating backlogs, and protecting children from “aging out” of the system is much-needed reform. However, addressing our temporary employment-based visa system, which is also in need of a major restructuring, remains an opportunity for action. While the legislation pays significant attention to reducing obstacles for foreign workers already in line to access permanent residency, reforming America’s temporary immigration system could mean efficiently dealing with our future immigration flows.
As the Bipartisan Policy Center has previously explained, acquiring an employment-based green card is the culmination of a long journey for many foreign workers—many arriving as students—who start their immigration process in the United States on temporary visas. For example, according to DHS, in FY2018, 79% of all employment-based permanent residency grants were based on adjustment of status for individuals already in the United States. In the last decade an average of 89% of all permanent green cards were granted based on an adjustment of status. Therefore, reforming America’s permanent immigration system without addressing reforms to its temporary visas could be this bill’s major blind spot in reforming high-skilled immigration.
The U.S. permanent green card system is based on an employer sponsorship model and can be an expensive process for both employers and foreign workers alike. Employers are more likely to sponsor foreign workers who have previously worked for their company on a temporary visa, such as the H-1B. For example, in FY2019, out of approximately 139,000 employment-based green cards offered to foreign workers, only around 29,000 visas were for employment-based new arrivals. Without reforming our temporary visa system, which is the gateway to permanent residency in most cases, dysfunction in our immigration system will persist.
While the bill aims to increase overall visa caps in several employment-based visa categories, it does not introduce any new visas for temporary or permanent high-skilled immigration or make any reforms to the requirements for these visas. Research shows that the United States needs more immigrants, and that need may be higher for post-COVID-19 economic recovery, especially if an immigrant has entrepreneurial talents who may be able to create job opportunities for U.S. workers. Countries like Canada and Australia may already be ahead of the United States in that regard as both nations have implemented a start-up or entrepreneur visa program that provides an easy pathway for highly qualified entrepreneurs to enter the country.3 A bill that includes a pathway for new immigration that meets our existing needs would be beneficial for our immigration system in the long-term.
1 The “dual intent” provision under the Immigration Act of 1990 allows those with a dual intent visa, such as the H-1B, to take steps toward adjusting their status to become lawful permanent residents while still maintaining their current nonimmigrant visa.
2 The “recaptured” visas will be added to the caps each year until all available unused visas from those years are exhausted.
3 The qualification process for the Canadian and Australian start-up visa is much simpler than America’s EB-5 investor visa, which is meant to cater to job creators looking to immigrate to the United States.