Contents

• Introduction
• Background on Numerical Limits
• Employment-Based Immigrants
• Per-Countrycountry Ceiling
• Admission Trends
• Earlier Revision of the Per-Country Cap
• Employment-Based Visa Retrogression
• Employment-Based Priority Dates for November 2011
• Approved Visa Petitions Pending
• New Arrivals Versus AdjustmentsNew Arrivals Versus Adjustments of Status
• Employment-Based Priority Dates for August 2016
• New Arrivals: Approved Visa Petitions Pending at the NVC
Adjustment of Status: of Status
• Approved I-485 Petitions Pending
• Comparative Summation
• Legislative and Policy Issues
• Options to Lift the Per-Country Limits
Changing Per-country Limits
• Possible Alternatives to Revising the Country Caps
• Statistical Projections Elusive
• Summary of Arguments in Debate

Summary

The Immigration and Nationality Act (INA) specifies a complex set of numerical limits and preference categories for admitting lawful permanent residents (LPRs) that include economic priorities among the criteria for admission. The INA allocates 140,000 visas annually for employment-based legal permanent residents (LPRs), and they were 14.2% of the total 1.0 million LPRs in FY2010Employment-based immigrants are admitted into the United States through one of the five available employment-based preference categories. Each preference category has its own eligibility criteria and numerical limits, and at times different application processes. The INA allocates 140,000 visas annually for employment-based LPRs, which amount to roughly 14% of the total 1.0 million LPRs in FY2014. The INA further specifies that each year, countries are held to a numerical limit of 7% of the worldwide level of U.S. immigrantLPR admissions, known as per-country limits or country caps.

Even as U.S. unemployment levels remain high, someSome employers assert that they continue to need the "best and the brightest" workers, regardless of their country of birth, to remain competitive in a worldwide market and to keep their firms in the United States. While support for the option of increasing employment-based immigration may be dampened by economic conditions, proponents argue it is an essential ingredient for economic growth. Those opposing increases in employment-based LPRs assert that there is no compelling evidence of labor shortages and cite the rate of unemployment across various occupations and labor markets.

With this economic and political backdrop, the option of lifting the per-country caps on employment-based LPRs has become increasingly popular. Some theorizeargue that the elimination of the per-country caps would increase the flow of high-skilled immigrants without increasing the total annual admission of employment-based LPRs. The presumption is that many high-skilled people (proponents cite those from India and China, in particular) would then move closer to the head of the line to become LPRs.

To explore this policy option, analyses of approved pending employment-based petitions are performed on two different sets of data: approved pending casespetitions with the Department of State (DOS) National Visa Center (NVC), and approved pending casespetitions with U.S. Citizenship and Immigrant Services (USCIS). The overwhelming number of approved employment-based LPR visas pending at the National Visa Center at the close of FY2010 were those of professional and skilled workers—102,395. There were also 16,788 approved visas pending for unskilled workers. In terms of those with advanced degrees, another 6,738 visas were pending. There were also 2,961 approved visas pending in the "extraordinary" category. In terms of the USCIS data, most of the approved I-485 petitions pending are professional, skilled, and unskilled workers (114,442). There were 7,545 approved I-485 petitions pending in the "extraordinary" category and 45,573 approved I-485 petitions pending in the "advanced degree" category. The extent that these two sets of data overlap—and thus may be counting the same petitions twice—is not known, but substantial duplication is presumed to exist.

Some argue that the per-country ceilings are arbitrary and observe that employability has nothing to do with country of birth. Others maintain that the statutory per-country ceilings restrain the dominance of high-demand countries and preserve the diversity of the immigrant flows. Legislation to revise the per-country ceilings on LPRs passed the House (H.R. 3012) on November 29, 2011.

immigrant flows. Introduction

Four major principles currently underlie U.S. policy on legal permanent immigration: the reunification of families, the admission of legal permanent residents (LPRs)¹ with needed skills, the protection of refugees, and the diversity of admissions by country of origin.¹2 These principles are embodied in federal law, the Immigration and Nationality Act (INA) first codified in 1952. The Immigration Amendments of 1965 replaced the national origins quota system (enacted after World War I) with per-country ceilings. The Immigration Act of 1990 was the last law to significantly revise the statutory provisions on employment-based permanent immigration to the United States.²

Interest 3

Currently, permanent immigrants (or LPRs) enter the United States based on a preference system. Nonimmigrants, who are admitted into the United States temporarily, are not admitted through this preference system. There are five preference categories for employment-based LPRs and each has its own eligibility requirements and numerical limitations, and at times different application processes. Per-country ceilings are an additional numerical limitation placed on permanent immigration in order to prevent any one country from taking too large of a share of the visas.

The Departments of State (DOS) and Homeland Security (DHS) each play key roles in administering the law and policies on the admission of aliensmigrants. Although DOS Consular Affairs is responsible for issuing visas, the U.S. Citizenship and Immigrant Services (USCIS) in DHS approvesmust first approve immigrant petitions. DOS is responsible for the allocation, enumeration, and assignment of all visas. In addition, the Department of Labor (DOL) is responsible for ensuring that employers seeking to hire employment-based LPRs are approved to do so. The prospective immigrant must maneuver this course through these federal departments and agencies to obtain LPR status. Figure 1 offers a diagram on the multi-step process that prospective employment-based LPRs go through as they seek permanent residence in the United States.

Figure 1. Employment-Based Admissions A multi-step process

Source: CRS synthesis of immigration law and procedures. Notes: For further information on labor certification, see CRS Report RL33977, Immigration of Foreign Workers: Labor Market Tests and Protections.

The report opens with brief explanations of the employment-based preference categories and the per-country ceilings governing annual admissions of LPRs. The focus is on the five major employment-based preference categories. The report continues with a statistical analysis of the pending caseload of approved employment-based LPR petitions. The same analyses of approved pending employment-based petitions are performed on two different sets of data: approved pending casespetitions with the DOS National Visa Center; and approved pending casespetitions with USCIS, known by the petition number as the I-485 Inventory. The extent that these two sets of data overlap—and thus may be counting the same petitions twice—is not known, but substantial duplication is presumed to exist. The report concludes with a set of legislative options to revise per-country ceilings that are meant to serve as springboards for further discussions.

Background on Numerical Limits

The INA provides for a permanent annual worldwide level of 675,000 LPRs, but thiswhich is further broken down by specific levels for each preference category.⁴ However, the worldwide level is flexible and certain categories of LPRs are permitted to exceed the limits.³5 The permanent worldwide immigrant level consists of the following components: family-sponsored immigrants,⁶ including immediate relatives of U.S. citizens and family-sponsored preference immigrants (480,000 plus certain unused employment-based preference numbers from the prior year); employment-based preference immigrants (140,000 plus certain unused family preference numbers from the prior year); and diversity immigrants (55,000). Immediate relatives⁴⁷ of U.S. citizens as well as refugees and asylees who are adjusting to LPR status are exempt from direct numerical limits.⁵8 As a result, roughly 1 million LPRs are admitted or adjusted annually.

TheIn addition to preference category numerical limitations, the INA specifies that each year countries are held to a numerical limit of 7% of the worldwide level of U.S. immigrant admissions, known as per-country limits or country caps.⁶9 The actual number of immigrants that may be approved from a given country, however, is not a simple percentage calculation, as certain types of LPRs (such as immediate relatives) are exempt from the country caps.

Employment-Based Immigrants

In accordance with the INA, employment-based preferenceEmployment-based immigrant visas (and family-sponsored visas) are issued to eligible immigrants in the order in which petitions have been filed under that specific preference category for that specific country.¹⁰ Spouses and children of prospective LPRs are entitled to the same status, and the same order of consideration as the person qualifying as the principal LPR, if accompanying or following to join the LPR (referred to as derivative status). When visa demand exceeds the per-country limit, visas are prorated according to the preference system allocations (detailed in Table 1) for the oversubscribed foreign state or dependent area.

The INA bars the admission of any alienmigrant who seeks to enter as a 2^nd (advanced degree) or 3^rd (professional and skilled) or 3^rd preference LPR to perform skilled or unskilled labor, unless it is determined that (1) there are not sufficient U.S. workers who are able, willing, qualified, and available; and (2) the employment of the alienmigrant will not adversely affect the wages and working conditions of similarly employed workers in the United States.¹¹ The foreign labor certification program in the U.S. Department of Labor (DOL) is responsible for ensuring that foreign workers do not displace or adversely affect wages or working conditions of U.S. workers.⁷

As previously mentioned12 Therefore, employers applying for foreign workers under the 2^nd and 3^rd preference categories must first get a foreign labor certification from DOL before filing a visa petition with USCIS. Per-country Ceiling As mentioned previously, the INA establishes per-country levels, or country caps, at 7% of the worldwide level.⁸ 13 The annual worldwide level for permanent immigration is 675,000 LPRs.¹⁴ For a dependent foreign state, the per-country ceiling is 2%.⁹15 The per-country level is not a "quota" set aside for individual countries, as each country in the world could not receive 7% of the overall limit. As the State Department describes it, the per-country level "is not an entitlement but a barrier against monopolization."

In addition to being a worldwide ceiling of 7% per country, the 7% per-country ceiling applies within the family-based preference system and did apply within the employment-based preference system prior to FY2001. The American Competitiveness in the Twenty-First Century Act of 2000 (P.L. 106-313) enabled the per-country ceilings for employment-based immigrants to be surpassed for individual countries that are oversubscribed as long as visas are available within the worldwide limit for employment-based preferences. Now employmentEmployment-based preference allocations may exceed the 7% per-country limit within the overall level of 140,000 annually.

Admission Trends

The total number of employment-based LPRsLPR admissions notably increased in all five preference categories, from under 100,000from 123,291 in FY1994 to over 250,000246,865 in FY2005.¹⁰16 Employment-based LPRs dipped to 126,874140,903 in 2009 and rose to 148,343 in FY2010151,596 in FY2014. They comprised 14.2% of the 1.0 million LPRs in FY2010.15% of the total 1,016,518 LPRs in FY2014.¹⁷ As noted in Table 1 above, the INA allocates the bulk of the employment-based visas—almost 86%—to the 1^st through 3^rd preference categories.

Figure 21 presents the trends from 1994 to 2014 by preferences.¹⁸ Over this period, the 1^st preference LPRs have increased by 93% and the 2^nd preference LPRs have increased by more than 200%. The admission of 3^rd preference "professional, skilled, and unskilled workers" and 4^th preference "special immigrants" has dropped by 44% and 20% from FY1994 through FY2014, respectively. With respect to the 5^th preference, from FY1994 to FY2014, admissions increased by more than twenty-fold (from 444 to 10,723).

Figure 2. Permanent Employment-Based Admissions for 1st, 2nd, and 3rd Preferences, 1994-2010

Source: CRS analysis of data from the DHS Office of Immigration Statistics and the former Immigration and Naturalization Service. Notes: The Notes: The 4th and 5th preferences are too small to depict. The 25,911 Chinese who adjusted under the Chinese Student Protection Act from 1994 to 1996 are not depicted even though they were counted under the "Skilled and Unskilled" category. The dip in 2003 and subsequent spike in 2004 are due in large part to processing delays resulting from the transfer of immigration functions to the Department of Homeland Security in 2003.

New Arrivals Versus Adjustments of Status

Petitions for employment-based LPR status are first filed with USCIS in DHS by the sponsoring employer in the United States or, in some cases, the individual can self-petition. Petitions are sent to the National Visa Center (NVC) at DOS and individuals are assigned a priority date which represents their place in line. Individuals must then wait for their priority date to become current before they can proceed to the next steps.¹⁹

Once an individual's priority date becomes current, the next steps they take will depend on whether they are already in the United States or are abroad. If the prospective immigrant is already residing in the United States, the individual must apply for an adjustment of status (with Form I-485), which involves the individual, who is currently in the country, switching from a temporary category (e.g., an individual with an F-1 student temporary visa) to a permanent category. USCIS handles the processing of applications for adjustment of status.²⁰

If the prospective LPR does not have legal residence status in the United States or is living abroad, the National Visa Center will handle the processing of the petition and will then forward the petition to the DOS Bureau of Consular Affairs in the applicant's home country. Regardless of whether the potential LPR is adjusting status with USCIS in the United States or obtaining a visa abroad from Consular Affairs, DOS assigns the visa priority dates and allocates the visa numbers.

Most foreign nationals who become LPRs were already living in the United States. For example, approximately 86% of employment-based LPRs adjusted to LPR status in FY2014 and only 14% arrived from abroad. Figure 2 shows that over the last decade, within almost all employment-based LPR preference categories, most individuals were adjusting from within the United States, typically as nonimmigrants.²¹ The 5^th preference immigrant investors were the exception and had a majority of individuals being admitted as new arrivals (82% from FY2004-FY2014).²²

Figure 2. Newly Arriving and Adjusting Employment-Based Principals

FY2004-FY2014 Totals by Preference Category

Source: CRS analysis of data from the DHS Office of Immigration Statistics.

The implications of this difference—whether the LPR is "arriving" or "adjusting"—are significant, in that it requires two separate departments to take charge of processing employment-based immigrant visas. Therefore, there are two different sources for data. Data from DOS's NVC caseload of approved pending petitions reflects visa petitions that DOS has received and therefore excludes adjustment of status I-485 applications (processed by USCIS). In addition, USCIS publishes data on their inventory of pending adjustment of status applications (I-485 applications).

Employment-Based Priority Dates for August 2016

As mentioned above, DOS assigns visa priority dates to both individuals adjusting status and those applying from abroad. DOS issues a monthly Visa Bulletin that provides information on how the visa queue translates into waiting times for immigrants.²³ The Visa Bulletin issues cutoff dates for numerically limited employment-based preference categories. Individuals with filing dates, or priority dates, earlier than the cutoff dates in the Visa Bulletin are currently being processed.

According to DOS's Visa Bulletin for August 2016, the 1^st preference "extraordinary workers" visa category was current, except for China and India, as Table 2 shows. When a category is current, it means an approved petition is now ready for either adjustment of status or consular processing, regardless of priority date. With respect to the 2^nd preference "advanced degree" visa category, all countries had a priority date of February 1, 2014, except for China and India. Visas for 3^rd preference "professional, skilled, and unskilled workers" visas had a March 15, 2016, priority date, but China, India, and the Philippines had longer waits. For the 4^th preference "special immigrants" visa and 4^th preference "religious workers" visa, all countries were current except for El Salvador, Guatemala, Honduras, Mexico, and India. The 5^th preference "non-regional center immigrant investors" visa and "immigrant investors" visa were current for all countries except China. Table 2. Priority Dates for Employment Preference Visas for August 2016

Category

China

El Salvador, Guatemala, and Honduras

Earlier Revision of the Per-Country Cap

As Table 2 shows, the unskilled worker category was oversubscribed worldwide in 2000, with a priority date of May 1, 1996. That priority date meant that visas were being assigned in December 2000 for petitions filed on May 1, 1996, in that preference category. The worldwide oversubscription in the unskilled worker category resulted from the statutory limit of 10,000 annually, which had been temporarily cut to 5,000 annually. The accumulation of pending cases in the advanced degree and the professional and skilled workers categories was attributed to the per-country ceiling provision that limited the total number of visas allocated to each country to 7% of the 140,000 total. India and China were reaching their 7% ceiling, but the overall ceiling of 140,000 was not being reached. Approved professional and skilled worker petitions from India and China had priority dates of April 15, 1998, and March 8, 1997, respectively.

Petitions for employment-based LPR status are first filed with USCIS in DHS by the sponsoring relative or employer in the United States, as depicted in Figure 1. If the prospective immigrant is already residing in the United States, the USCIS handles the entire process, which is called "adjustment of status" because the alien is moving from a temporary category to LPR status. If the prospective LPR does not have legal residence in the United States, the petition is forwarded to the DOS Bureau of Consular Affairs in their home country after USCIS has reviewed it. Regardless of whether the LPR is adjusting status with USCIS in the United States or obtaining a visa abroad from Consular Affairs, DOS assigns the visa priority dates and allocates the visa numbers.

Several years ago, "accounting problems" between USCIS's processing of LPR adjustments of status in the United States and Consular Affairs'DOS's Bureau of Consular Affairs' (BCA) processing of LPR visas abroad became apparent. As discussed more fully belowabove, most employment-based LPRs are adjusting status from within the United States. Consular Affairs rather than being admitted to the United States from abroad. BCA is dependent on USCIS for current processing data on which to allocate the visa numbers and calculate the employment-based visa priority dates. Therefore, DOS may understate the actual number of approved petitions if USCIS does not forward "adjusting" LPR petitions to the National Visa Center in advance of BCA reaching the visa priority date for each month. When the visa priority dates moveWhen the visa priority dates moved backward in time rather than forward in time, the phenomenon becameis known as visa retrogression. TheVisa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available.²⁴ This can result from problems in forwarding approved petitions to the National Visa Center in a timely manner. To cite one example, the Visa Bulletin for September 2005 offered this explanation for visa retrogression:

The backlog reduction efforts of both Citizenship and Immigration Services, and the Department of Labor continue to result in very heavy demand for Employment-based numbers. It is anticipated that the amount of such cases will be sufficient to use all available numbers in many categories ... demand in the Employment categories is expected to be far in excess of the annual limits, and once established, cut-off date movements are likely to be slow.¹⁴

25 The most substantial visa retrogression occurred in July 2007. The Visa Bulletin for July 2007 listed the visa priority dates as "current" for the employment-based preferences (except for the unskilled other worker category).¹⁵26 On July 2, 2007, however, the State Department issued an Update to July Visa Availability that retrogressed the dates to "unavailable." The State Department offered the following explanation: "The sudden backlog reduction efforts by Citizenship and Immigration Services Offices during the past month have resulted in the use of almost 60,000 Employment numbers.... Effective Monday July 2, 2007 there will be no further authorizations in response to requests for Employment-based preference cases."¹⁶27 Visas in the employment-based categories were unavailable until the beginning of FY2008. Reportedly, USCIS now forwards all approved petitions to the National Visa Center, with the notable exception of those who would clearly be adjusting status within the United States.²⁸

An additional visa retrogression occurred in October 2015. DOS released a revised Visa Bulletin for October 2015, in which it stated that after consultation with DHS, some of the dates for filing applications had been adjusted to "better reflect a timeframe justifying immediate action in the application process."²⁹ With regard to employment-based preference categories, the retrogression affected the 2^nd preference category for petitions from India and China.

At the end of each fiscal year, the Department of State publishes a tabulation of approved visa petitions pending with the National Visa Center.³⁰ These data do not constitute a backlog of petitions to be processed; rather, these data represent persons who have been approved for visas that are not yet available due to the numerical limits in the INA. The data only reflect petitions that DOS has received and therefore excludes adjustment of status I-485 applications (processed by USCIS).³¹ As apparent from the visa retrogression discussion above, these data offer a potentially incomplete account of all prospective employment-based LPRs.

As of November 2011, the priority workers (i.e., extraordinary ability) visa category was current, as Table 3 presents. The advanced degree visa category was current worldwide, but those seeking advanced degree visas from China and India had a November 1, 2007, priority date. Visas for professional and skilled workers had a worldwide priority date of December 22, 2005, except for those workers from China and India who have priority dates of August 22, 2004, and July 22, 2002, respectively. Worldwide unskilled workers with approved petitions as of November 15, 2005, were being issued visas, but again workers from China and India have longer waits.

There were 130,619 approved petitions for employment-based LPR visas pending with the National Visa Center as of November 1, 2010.¹⁹ This figure of 130,619 reflects persons registered under each respective numerical limitation (i.e., the totals represent not only principal applicants or petition beneficiaries, but their spouses and children entitled to derivative status under the INA). Of those approved petitions, there were 128,88282,706 that were in the 1^st through 3^rd employment-based LPR preference categories.

The overwhelming number of approved employment-based LPR visas pending at the National Visa Center as of November 1, 2010, were those of 3^rd preference professional and skilled workers—102,395—as shown in Figure 3. There were also 16,788 approved 3^rd preference visas pending for unskilled workers. In terms of the 2^nd preference—those with advanced degrees—another 6,738 visas were pending. There were also 2,961 approved 1^st preference "extraordinary" visas pending.

Figure 3. Approved Employment-Based Visa Petitions Pending November 2010 by Date of Submission and by Preference Category

Source: CRS analysis of data from the Annual Report of Immigrant Visa Applicants in the Family-sponsored and Employment-Based Preferences Registered at the National Visa Center as of November 1, 2010. Note: There were 128,882 total cases in the 1st through 3rd preference categories. *Some pre-date 2000.

Most of the 3^rd preference cases pending were approved several years ago. The 1^st and 2^nd preference approved cases pending are more recent. Figure 3 presents the 128,882 approved employment-based visa petitions pending as of November 1, 2010, by date of submission and by preference category for the 1^st through 3^rd preference categories. That there are approved cases pending that pre-date the visa priority dates listed in the Visa Bulletin (pre-2003) poses a mystery because they have not gotten their visas. Are these individuals dealing with circumstances that have changed since their visas were approved (e.g., new job)? Have they qualified for an LPR visa in another category (e.g., married a U.S. citizen)? Or, have they changed their mind about immigrating to the United States?

Figure 4. Approved 1st through 3rd Employment-Based Visa Petitions Pending November 2010 by Top Countries

Source: CRS analysis of data from the Annual Report of Immigrant Visa Applicants in the Family-sponsored and Employment-Based Preferences Registered at the National Visa Center as of November 1, 2010. Note: There were 128,882 total cases.

As Figure 4 makes clear, the Philippines leads as the source country for most of the approved petitions pending for 1^st through 3^rd preference employment-based LPR visas. Over a third—36%—of the approved pending cases are from the Philippines (47,103). India follows at 19% or 25,172. The Peoples' Republic of China is third at 11% or 14,012. South Korea and Mexico round out the top five source countries with 6% and 4%, respectively, of the approved pending visas.

Figure 5. Employment-based Visa Petitions Pending November 2010 by Preference and Top Countries

Source: CRS analysis of data from the Annual Report of Immigrant Visa Applicants in the Family-Sponsored and Employment-Based Preferences Registered at the National Visa Center as of November 1, 2010. Note: There were 99,337 total cases.

The Philippine approved visas pending are overwhelmingly in the 3^rd preference professional and skilled worker category, as Figure 5 illustrates. The 3^rd preference professional and skilled worker category also dominates for India; however, India has a noteworthy portion of approved pending visas in the 2^nd preference category for those with advanced degrees.

Most foreign nationals who become LPRs are already living in the United States. Typically, over 90% of 140,000 employment-based LPRs annually are adjusting to LPR status rather than newly arriving from abroad. As Figure 6 shows, most 1^st and 2^nd preference employment-based LPRs over the past decade were adjusting from within the United States, typically as nonimmigrants.²² In comparison to the 1^st and 2^nd preferences, the 3^rd preference employment-based LPRs were more likely to be arriving from abroad—60,013 did so from FY2000-FY2009. Nonetheless, "arrivals" comprised only 17.3% of all 3^rd preference employment-based LPRs.²³

Figure 6. Newly Arriving and Adjusting Employment-Based Principals FY2000-FY2009 Totals by Preference Category

Source: CRS analysis of data from the DHS Office of Immigration Statistics.

Figure 7. Approved Employment-Based I-485 Petitions Pending January 2011 by Date of Submission and by Preference Category

Source: USCIS I-485 Inventory of pending cases, as of January 5, 2011. Note: There were 167,610 cases.

Much like Figure 3 depicting approved visa petitions pending with the National Visa Center, Figure 7 indicates that most of the approved I-485 petitions pending as of January 5, 2011, are 3^rd preference (114,442) and that their I-485 petitions were approved several years ago. There are 7,545 approved I-485 petitions pending in the 1^st preference category and 45,573 approved I-485 petitions pending in the 2^nd preference category. Similarly to the approved visa petitions with the National Visa Center, the 1^st and 2^nd preference approved I-485 petitions pending were filed more recently. The I-485 approvals pending in the USCIS Inventory, however, are meaningfully larger in the 1^st and 2^nd preference categories than the approved visas pending in the 1^st and 2^nd preference categories at the National Visa Center.

Figure 8. Approved 1st through 3rd Employment-Based I-485 Petitions Pending January 2011 by Top Countries

Source: USCIS I-485 Inventory of pending cases, as of January 5, 2011. Note: There were 167,610 cases.

With 82,411 approved I-485 petitions pending, India leads as the top source country with almost half—48%—of the approved I-485 petitions pending. The Peoples' Republic of China is a distant second with 10% or 16,598. The Philippines (9,997) makes up 6%, and Mexico (4,924) has 3%, as Figure 8 presents.

India dominates in the 2^nd "advanced degree" and 3^rd "professional, skilled, and unskilled worker" categories of approved I-485 petitions pending. Figure 9 illustrates that again the Peoples' Republic of China is a distant second, though China does make up a noteworthy number of approved I-485 petitions pending for persons with advanced degrees.²⁷

Figure 9. Approved Employment-Based I-485 Petitions Pending January 2011 by Preference and Top Countries

Source: USCIS I-485 Inventory of pending cases, as of January 5, 2011. Note: There were 113,930 cases.

Figure 10 and Table 4 provide a comparative set of perspectives from which the effects that the per-country limits on legal immigration have on the oversubscribed countries may be assessed. Each depicts the pending caseload of approved employment-based LPR petitions in the 1^st through 3^rd preference categories for both the National Visa Center's approved visa pending and the USCIS's I-485 Inventory of approved petitions. Figure 10 shows the data by top source country, and Table 4 presents the data by visa category.

The data presented in Table 4 make clear that the bulk of the approved pending cases—whether they be in the I-485 Inventory or the National Visa Center—are 3^rd preference cases and that both totals are similar in size. In terms of the 1^st and 2^nd preference approved pending cases, the I-485 Inventory holds many more than the National Visa Center. These patterns are consistent with the earlier analysis of "new arrivals" and "adjustments" showing that most 1^st and 2^nd preference employment-based LPRs over the past decade were adjusting status.

Figure 109. Top Countries with Approved Visa or I-485 Petitions Pending Visas Pending November 20102015 and I-485 Petitions Pending January 2011 April 2016

Source: CRS analysis of data from the Annual Report of Immigrant Visa Applicants in the Family-Sponsored and Employment-Based Preferences Registered at the National Visa Center as of November 1, 2010; and USCIS I-485 Inventory of pending cases, as of January 5, 2011. Note: These are not unduplicated counts, but the extent that these data overlap is not known. petitions, as of April 2016. Note: I-485 represents approved petitions maintained in USCIS's I-485 inventory for applicants that are adjusting status from within the United States. NVC represents approved petitions maintained in DOS's National Visa Center for applicants that are applying for a visa from abroad.

The data in Figure 109, along with the previous analyses, suggest that the vast numbermajority of Indians are waiting to adjust status in the United States, while the vast numbermajority of Filipinos are waiting to immigrate from abroad. Those with approved pending cases from the Peoples' Republic of petitions from China seem to be more evenly split among those who might be adjustments and those who might be new arrivals. It is also evident that policy options aimed at advancing approved casespetitions from India and China would also bear on approved casespetitions pending from the Philippines.

Legislative and Policy Issues

Economic indicators confirmEmployment-based immigration often raises concerns about foreign workers competing with or displacing U.S. workers. The concerns were especially prevalent during the past decade when economic indicators showed that the economy went into a recession at the close of 2007.²⁸.³⁷ Although some economic indicators suggest that modest growth has resumed, unemployment remains high and is projected to remain so for some time.²⁹ Even as U.S. unemployment levels remain highmodest growth, unemployment levels remained high long after the end of the recession and only fell back to their pre-recession level in late 2015. The Bureau of Labor Statistics reported that in May 2016 there were 7.4 million unemployed persons, compared with 5.5 million job openings (a ratio of 13 job seekers for every 10 job openings).³⁸   Even as the number of unemployed individuals outnumbers the number of open positions, some employers assert that they continue to need the "best and the brightest" workers, regardless of their country of birth, to remain competitive in a worldwide market and to keep their firms in the United States. While support for the option of increasing employment-based immigration may be dampened by economic conditions, proponents argue it is an essential ingredient for economic growth.³⁰39 Those opposing increases in employment-based LPRs in particular assert that there is no compelling evidence of labor shortages and cite the rate of unemployment across various occupations and labor markets.³¹40 They argue that recruiting foreign workers while unemployment levelsmany Americans remain highunemployed would have a deleterious effect on salaries, compensation, and working conditions in the United States.⁴¹ Changing Per-country Limits⁴² would have a deleterious effect on salaries, compensation, and working conditions of U.S. workers.³²

Options to Lift the Per-Country Limits³⁶

With this economic and political backdrop, the option of lifting the per-country caps on employment-based LPRs has gained attention. Some theorizeobservers contend that the elimination of the per-country caps would increase the flow of high-skilled immigrants without increasing the total annual admission of employment-based LPRs.³⁷43 The presumption is that many high-skilled people (proponents cite those from India and China, in particular) would then move closer to the head of the line to become LPRs.³⁸

• 44

  Legislative options that have been suggested include the following:

  a targeted lifting of the country caps on the top two preference categories of priority workers and those who are deemed exceptional, extraordinary, or outstanding individuals;
• a categorical lifting of the country caps on all employment-based preference categories, up to the 140,000 worldwide ceiling on employment-based LPRs; or
• a complete lifting of the country caps on all employment-based preference categories as well as excluding employment-based LPRs from the calculation of the family-based and worldwide per-country ceilings.

Secondly, we do not know the full effect that the 2007 visa retrogression has had on the processing of employment-based visasPossible Alternatives to Revising the Country Caps

While this report is expressly focused on the per-country ceilings in the INA, revising the country caps is just one of many ways to foster high-skilled immigration to the United States. Several possible alternatives include the following:⁴⁵

• reallocate the employment-based preferences: If the objective is to increase the number of the highest-skilled immigrants without raising the worldwide level, then reallocating additional visas to the 1^st and 2^nd preference categories is another option. In doing so, it would increase the flow of employment-based immigrants. This alternative, however, would not address the sheer number of approved LPR petitions from China, India, Mexico, and the Philippines. Many advanced-degree workers and all professional and skilled workers who have approved petitions have employers who have already been certified to hire them and have offered jobs to them.
• reallocate the diversity visas: Some have observed that the 50,000 diversity visas would be better used for high-skilled immigrants.⁴⁶
• permit selected nonimmigrants to adjust to LPR status outside the numerical limits: This alternative would be establishing an employment-based LPR category for foreign students who have obtained a graduate degree at the level of master's or higher in a science, technology, engineering, or mathematics (STEM) field from a U.S. institution.

It is not possible to statistically project the effects of revising the per-country limits for several reasons. Foremost, it is not known whether approved petitions may be counted in both the National Visa Center data and the USCIS I-485 Inventory. If so, how is the number of approved employment-based petitions affected?

It is quite likely that additional people would seek employment-based LPR visas if the wait times were shorter. Employers as well as prospective foreign workers may be more likely to file petitions if the delays were shortened. In other words, the reduction in the number of approved casespetitions pending might be short-lived.

Finally, if the per-country ceilings were eliminated for employment-based LPRs without any other revisions to permanent legal immigration, it would likely have "ripple" effects on family-based immigration as well as other potential employment-based LPRs.

Summary of Arguments in Debate

Some observe that the per-country ceilings are arbitrary and argue that country caps should not be applied to employment-based preference categories. They maintain that employability has nothing to do with country of birth and that U.S. employers are not allowed to discriminate based on nationality or country of origin. They further opine that it is discriminatory to have laws that limit the number of employment-based LPRs according to country of origin.³⁹

Proponents of per-country ceilings maintain that the statutory per-country ceilings restrain the dominance of high-demand countries and preserve the diversity of the immigrant flows. The Immigration Amendments of 1965 ended the country-of-origin quota system that overwhelmingly favored European immigrants, and subsequent amendments to the INA included immigrants from Western Hemisphere countries within the worldwide and per-country limits. Supporters of current law maintain that U.S. immigration policy has been more equitable and less discriminatory in terms of country of origin as a result of these reforms, because the INA puts country of origin on an equal playing field.

Appendix A. Further Breakdowns of Employment-Based CasesPetitions Pending by Top Countries

Further analysis that compares the distributions of extraordinary and advanced degree categories with the professional, skilled, and unskilled workerthe employment-based preference categories reveals additional differences among the top countries. Even more striking, however, are the country differences between those approved visa petitions pending with the National Visa Center (NVC) and those approved I-485 petitions pending with the USCIS.

Approved Visa Petitions Pending

The number of approved 1^st and, 2^nd, 4^th, and 5^th 2^nd preference visas pending is small in contrast to the 3^rd preference category. Figure ATable A-1 presents the top country data for just the "extraordinary" and the "advanced degree" categories. India makes up almost a third (32%) of the 9,699 approved visas pending. The Peoples' Republic of China is second with 12%. Canada and South Korea are the source countries for 5% each. Great Britain (including Northern Ireland) and the Philippines each comprise 3% of the 1^st and 2^nd preference approved visas pending.

Figure A-1. Approved Extraordinary and Advanced Degree Visa Petitions Pending November 2010 by Top Countries

Source: CRS analysis of data from the Annual Report of Immigrant Visa Applicants in the Family-Sponsored and Employment-Based Preferences Registered at the National Visa Center as of November 1, 2010. Note: There were 9,699 total cases.

As indicated previously, most of the approved employment-based visas are 3^rd preference professional and skilled workers, and as shown in Figure A-2, the Philippines leads with 45% of the 102,395 visas pending. India is the source country for 20% of the approved 3^rd preference professional and skilled worker visas pending. The Peoples' Republic of China, South Korea, and Mexico contribute 7%, 3%, and 2% respectively to the approved pending visas for professional and skilled workers.

Figure A-2. Approved Professional and Skilled Worker Visa Petitions Pending November 2010 by Top Countries

Source: CRS analysis of data from the Annual Report of Immigrant Visa Applicants in the Family-Sponsored and Employment-Based Preferences Registered at the National Visa Center as of November 1, 2010. Note: There were 102,395 total cases.

Figure A-3 teases out the portion of approved I-485 petitions pending from China in the "extraordinary" and the "advanced degree" categories and shows that 25% of those are from the Peoples' Republic of China. Once again, however, India dominates the I-485 Inventory, comprising over half (53%) of the approved 1^st and 2^nd preference categories.

As shown in Figure A-4, India also leads as the top source country for 3^rd preference professional, skilled, and unskilled workers with approved I-485 petitions pending. Again, India makes up about half—49%—of the category. The Philippines is a distant second with 8% of the approved I-485 3^rd preference petitions pending.

Figure A-3. Approved Extraordinary and Advanced Degree I-485 Petitions Pending January 2011 by Top Countries

Source: USCIS I-485 Inventory of pending cases, as of January 5, 2011. Note: There were 53,168 cases.

Figure A-4. Approved Professional, Skilled, and Unskilled Worker I-485 Petitions Pending January 2011 by Top Countries

Source: USCIS I-485 Inventory of pending cases, as of January 5, 2011. Note: There were 114,442 cases.

The largest number of LPR visas are allocated to foreign nationals with a family relationship with a U.S. citizen or legal resident, as Table B-1 details. Of the 1 million LPRs in FY2010, 66.3% entered on the basis of family ties and 45.7% were the immediate relatives of U.S. citizens.

Immediate relatives of U.S. citizens made up the single largest group of immigrants, as Table B-1 indicates. The spouses and children of LPRs were the second-largest group.

Figure B-2 presents approved petitions for the 4.6 million family-based LPR visas pending with the National Visa Center at the end of FY2010, by date of submission.⁴⁰ Over half (55%) of all approved family petitions pending were 5^th preference (i.e., brothers and sisters of U.S. citizens). Almost an equal number of approved family petitions pending were 2^nd and 3^rd preferences, 20% and 19%, respectively.

Mexico is the top sending country for all approved family petitions pending, with 29.5%, followed in a distant second by the Philippines with 11.4% (Figure B-3)

Figure B-1. Family-Based Admissions, 2001-2010

Source: CRS analysis of data from the DHS Office of Immigration Statistics.

Figure B-2. Approved Family-Based Visa Petitions Pending November 2010 by Date of Submission and by Preference Category

Source: CRS analysis of data from the Annual Report of Immigrant Visa Applicants in the Family-Sponsored and Employment-Based Preferences Registered at the National Visa Center as of November 1, 2010. Notes: 2000* include cases pending prior to 2000. There were 4.6 million family-based cases pending.

Figure B-3. Approved Family-Based Visa Petitions Pending January 2011 by Top Countries

Source: CRS analysis of data from the Annual Report of Immigrant Visa Applicants in the Family-Sponsored and Employment-Based Preferences Registered at the National Visa Center as of November 1, 2010. Note: There were 4.6 million family-based cases pending.

Source: CRS analysis of data from the Annual Report of Immigrant Visa Applicants in the Family-sponsored and Employment-Based Preferences Registered at the National Visa Center as of November 1, 2015.

Approved I-485 Petitions Pending

The following table looks at the portion of approved I-485 petitions pending from select countries for each of the five employment-based preference categories. India has the largest number of approved pending I-485 petitions for all categories, except the 5^th preference, where China is responsible for the largest portion. China also has the 2^nd largest number of approved pending I-485 petitions for the 1^st and 2^nd preference categories.

Author Contact Information

Acknowledgments

This report was originally written by Ruth Wasem, former Specialist in Immigration Policy.

Footnotes