LegiStorm

Summary:

Each year, the United States grants lawful permanent resident (LPR) status, or green cards, to about 140,000 foreign workers and their family members. These employment-based (EB) immigrants are part of a broader permanent immigration system established by federal law—the Immigration and Nationality Act (INA)—that grants LPR status to roughly 1 million foreign nationals annually. Employment-based immigrants acquire LPR status through one of five preference categories: three hierarchical categories based on qualifications and needed skills (EB1, EB2, and EB3); a miscellany special immigrant category (EB4); and an immigrant investor category (EB5). Each category is numerically limited and has its own eligibility requirements. The INA further limits each country from which employment-based immigrants originate to no more than 7% of all employment-based LPRs granted each year. The process to acquire a green card depends on where prospective employment-based immigrants reside. Foreign nationals residing overseas apply for an immigrant visa as new arrivals. Those residing in the United States apply to adjust status from a nonimmigrant (temporary) status to LPR status. Most prospective EB immigrants require U.S. employers to sponsor them for LPR status regardless of where they reside. The Department of State (DOS) tracks and allocates numbers of green cards. Sizable proportions of EB immigrants are employed in science, technology, engineering, health care, and finance. Indian, Chinese, Filipino, Brazilian, and Korean nationals accounted for almost half (48%) of all EB immigrants in FY2023 because of various provisions that allow the 7% per country limit to be exceeded. Most prospective EB immigrants adjust status while residing in the United States and are already embedded in the U.S. labor market, often working for their sponsoring employers. Because the demand for EB green cards far exceeds the annual statutory allotment, a sizeable employment-based queue has emerged of foreign workers and their accompanying family members who have approved EB petitions but are waiting for an immigrant visa to become available. The EB queue exists largely because U.S. employers sponsor far more nonimmigrants (and their family members) for LPR status than there are statutorily available LPR slots. New prospective immigrants from major immigrant-sending countries like India and China can anticipate years-long waits, depending on employment-based visa category, to acquire a green card. In recent years, U.S. employers have hired more nonimmigrant workers, particularly those with science and technological skills. In addition, foreign students have assumed a prominent role at many U.S. universities, as have foreign-born workers in technical sectors of the U.S. labor market. Certain nonimmigrant visas bridge the otherwise separate nonimmigrant and immigrant systems, because the INA grants their recipients dual intent that allows them to work temporarily in the United States and seek LPR status as nonimmigrants. Prominent dual intent visa categories include the H-1B specialty worker and L intra-company transferee visas. The last major legislative change to the permanent employment-based system occurred with the Immigration Act of 1990, which established the current preference category system and its numerical limits. Since 1990, the U.S. gross domestic product (GDP) has doubled and technology has expanded throughout the U.S. economy. Some consider statutory immigration limits insufficient for current U.S. labor market needs. Opponents of increasing immigration levels cite concerns over employment competition and limited evidence of tight labor markets. Some have proposed policies to address the employment-based queue, including eliminating the 7% per-country ceiling and increasing the total number of employment-based immigrants admitted. Some support increasing the annual limit on employment-based immigrants to accommodate current labor market needs. Others argue that Congress should alter the criteria by which the United States admits all permanent immigrants, putting greater emphasis on labor market contribution. Some have proposed points-based systems that reward attributes associated with positive economic and labor market outcomes. Others propose decentralizing immigrant selection through place-based systems that allow states and jurisdictions to sponsor foreign workers based on local labor needs. Others have proposed regularly adjusting immigrant levels based on national needs.