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

On Feb. 24, 2021, President Biden took a big step toward addressing the green card backlog: he revoked a freeze the former administration had put on several types of visas due to the COVID-19 pandemic. The move was an extension of his recent proposal to reform the immigration process. It also served to clear the way for hundreds of thousands of applicants to apply for visas and permanent resident status.

Former President Trump had frozen green cards and temporary work visas for skilled foreign workers, managers, and nannies in the H-1B, H-4, H-2B, L-1, and J categories—a move he said was to protect American jobs during the pandemic. 

However, in reversing the ban, President Biden said that the policy prevented qualified non-U.S. residents from entering the country to be united with their families. The Trump ban also meant that highly skilled workers were unable to apply for H-1B work visas, used largely by American tech companies to bring skilled workers in from abroad.

The Trump administration ban only exacerbated the H-1B visa to green card backlog, one that tech companies have been working to change for years to little avail.

Green Card Backlog Impacts Tech Companies

While U.S. tech companies are able to bring in skilled workers through the H-1B visa program, the system is temporary. Workers are granted a three-year work visa, which can be renewed once, for a maximum of six years (in total). After that, if the workers have not become lawful permanent residents (LPR), meaning they’ve received a green card, or become citizens, they are expected to leave the country. Unfortunately for the U.S. tech industry, the permanent resident or green card process is currently designed to reunite families, not satisfy tech’s thirst for foreign talent.

61% of green cards granted in the 2021 fiscal year went to family members of U.S. citizens; just about 26% went to immigrants and their accompanying families for employment reasons, according to the 2021 Annual Flow Report of U.S. Lawful Permanent Residents from the U.S. Department of Homeland Security.

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 have been found to restrict the flow of highly-skilled tech employees to the U.S. from nations like India and China, allegedly diminishing the competitiveness of American firms.

This has prompted several companies, including Cognizant Technology Solutions Corp. (CTSH), Deloitte LLP, Microsoft Corp. (MSFT), Meta Platforms Inc., formerly Facebook, (META), Hewlett Packard Enterprise Co. (HPE), IBM Corp. (IBM), Intel Corp. (INTC), SalesForce.com Inc. (CRM) and Micron Technology Inc. (MU) to lobby on the issue and push for reform.

Green Card Proposals Under Biden and Trump

The Biden Administration

On Jan. 20, 2021, on his first day in office, President Biden announced the U.S. Citizenship Act of 2021, a new immigration bill that would “provide pathways to citizenship and strengthen labor protections,” among other goals.

Lawmakers and the White House unveiled legislation on Feb. 18, 2021, based on the proposal Biden had introduced in January. The U.S. Citizenship Act of 2021 includes an eight-year path to citizenship for nearly 11 million undocumented immigrants, a shorter process to legal status for agriculture workers, and recipients of the Deferred Action for Childhood Arrivals (DACA) program, an enforcement plan for better border patrol, and a plan to help limit corruption and encourage prosperity in migrant communities.

Passing the bill as one big immigration package may be too challenging, lawmakers say, even with the Democrats controlling the Senate. Whether legislation passes at once, passes in smaller packages, or continues to be debated, there is an understanding that change and so-called modernization are needed.

The Trump Administration

During the Trump administration, the ban on green cards was first put into place in June 2020 and then extended twice. However, the ban itself was already an extension of the 2017 “Buy American, Hire American” executive order meant to promote the hiring of U.S. citizens.

In the year before the pandemic, the former president unveiled a proposal to overhaul and modernize the immigration system by increasing the intake of highly skilled foreigners and reducing family-based and diverse immigration.

A new visa, called the Build America visa, would replace green card categories. But the plan was never enacted, amid the COVID-19 pandemic and the end of President Trump’s administration.

Get in Line for the Golden (Well, Green) Ticket

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.

Due to the pandemic, green card reviews were backlogged in 2021, and 280,077 green cards (employment-based) were issued in fiscal year 2021.

Example: India

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 the number of applicants. A 2021 report from the Cato Institute showed that the green card backlog for employment-based immigrants in 2021 has topped 1.4 million applicants.

Those seeking a green card must join a queue and wait for a visa to become available. According to the February 2021 U.S. Department of State Visa Bulletin, Indian nationals in the EB-2 category whose initial petitions were received after Oct. 12, 2009, are still waiting to file their documents and apply. Chinese workers in the same category are faring slightly better—those with petitions received earlier than June 15, 2016, can send in their applications.

A November 2020 report from the Cato Institute—which drew on data from the U.S. Citizenship and Immigration Services (USCIS), an agency of the Department of Homeland Security (DHS)—showed that there were 398,132 Indians with approved petitions waiting to apply for an employment-based green card and around 75% 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.

Tech Industry Pushes Back

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 the U.S. are often stuck in limbo for decades as their companies are forced to request extensions on their temporary visas every few years.

Criticism of Per-Country Limits

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 2018.

Concerns About the Slow Path to Citizenship

Todd Schulte, the president of lobbying group FWD.us—whose founders include Meta 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 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 slowdown in H-1B visa applications.

Questions About the Frequent Changes in Immigration Rules

In August of 2018, Business Roundtable, a public policy-focused group of chief executives of U.S. companies, wrote a letter to the former 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,” said the group whose members include the chief executives of Apple Inc. (AAPL), Salesforce Inc. (CRM), Qualcomm Inc. (QCOM), Oracle Corp. (ORCL) and IBM. It also stated:

These employees must repeatedly renew their temporary work visas during this lengthy and difficult process…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.

Is There a Chance for Change?

Despite the lobbying efforts of American companies, it’s unclear what reform might look like. The Biden administration has made it clear that it wants to revamp and update the whole system, but the process of getting legislation passed will take some time.

Under the Trump administration, the Fairness for High-Skilled Immigrants Act of 2019, which aimed to eliminate the per-country cap, failed to pass the House. Opponents said removing the per-country cap would unfairly and dramatically increase wait times for citizens of other countries instead of solving the problem. Critics also said 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. 

President Biden’s new bill may have a better chance of being approved by both the House and the Senate since both are controlled by President Biden’s party, the Democrats. However, even with Democrats in both the House and the Senate, the current proposed legislation is expected to go through various revisions and potentially be broken down into smaller bills before it is likely to be passed.

The Bottom Line

The Biden administration has made it clear that it wants to revamp and modernize immigration, including everything from how many people qualify for work visas and for green cards, how many people should come from each country, and what the process should be for getting a green card or for going from having a short-term visa to legal status.

Tech companies are certainly looking for an overhaul, as has been made clear from years of advocacy both online and off. Many large tech companies would like to be able to hire more high-skilled foreign-born workers and to see them have a clearer path to permanent status and citizenship.

What the immigration overhaul ultimately looks like and how quickly its provisions come into play will be determined in the months ahead as Biden and Congress work to pass the U.S. Citizenship Act of 2021.