CRS Report - Numerical Limits on Employment-Based Immigration: Analysis of the Per-Country Ceilings

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. Employment-based immigrants are admitted into the United States

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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 LPR admissions, known as per-country limits or country caps. 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. 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 argue 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 petitions with the Department of State (DOS) National Visa Center (NVC), and approved pending petitions with U.S. Citizenship and Immigrant Services (USCIS).

Because DOS and USCIS play different roles in the visa application process, their datasets represent different populations. DOS’s data from the NVC contains individuals who apply for a visa while residing outside of the United States. They are considered new arrivals once they are issued a visa and enter the United States. USCIS’s data contains individuals who are already residing in the United States and are applying to change their immigration status from a temporary status to a permanent LPR visa. This process is referred to as an adjustment of status.

As of November 2015, there were 100,747 approved employment-based LPR petitions pending at the National Visa Center. The 3rd preference category of “professional, skilled, and unskilled” workers had the highest number of pending approved petitions (67,792). The 5th preference category of “immigrant investors” had 17,662 approved petitions pending and the 2nd preference category of “advanced degree” workers had 11,400 approved petitions pending.

There were also 3,747 approved petitions pending for the 1st preference category of “extraordinary” workers and 379 for the 4th preference category for “special immigrants.” In terms of the USCIS data, there were a total of 117,731 approved I-485 petitions pending as of April 2016, and most were for the 2nd preference “advanced degree” workers (46,765). There were 37,971 approved I-485 petitions pending in the 3rd preference “professional, skilled, and unskilled” category and 30,457 pending in the 1st preference “extraordinary” category.

In addition, there were 1,409 5 th preference “immigrant investor” and 1,129 4 th preference “special immigrant” approved I-485 petitions pending. Numerical Limits on Employment-Based Immigration Congressional Research Service The top four countries in the National Visa Center data set were (in descending rank order) India, the Philippines, China, and South Korea. The top four countries in the USCIS data sets were (in descending rank order) India, China, the Philippines, and Mexico.

The data indicates that more Indians and Mexicans are waiting to adjust status in the United States, while more Filipinos and Chinese are waiting to immigrate from abroad. 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 immigrant flows.