IMMIGRATION: Removal of per country limits on US green card explained

“ANILA ang balita’y bihirang magtapat, magkatotoo ma’y marami ang dagdag.”

Loosely translated into English, this Tagalog proverb means, “reports and narratives rarely are accurate, and even if true, they exaggerate.”

In the case of the bill removing per country limits of immigrant visas to the United States, passed by the House of Representatives on July 10, 2019, the favorite label of President Donald Trump is apropos: “Fake news!”

The various news reports announcing this historic piece of legislation—such as “first time the bill has made it through House of Congress since 2011”— do not provide a complete, accurate picture backed by historical and factual evidence.

So, what’s behind the hoopla?

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Comparison of current and proposed level of immigration
— Current: INA 202 (a) (2) Per country levels for family-sponsored and employment-based immigrants.

Subject to paragraphs (3), (4), and (5), the total number of immigrant visas made available to natives of any single foreign state or dependent area… may not exceed 7 percent (in the case of a single foreign state) or 2 percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year.

— Proposed under HR 1044- INA 202(a)(2) Per country levels for family-sponsored immigrants

Subject to paragraphs (3) and (4) the total number of immigrant visas made available to natives of any single foreign state or dependent area…may not exceed 15 percent (in the case of a single foreign state) or 2 percent (in the case of a dependent area) of the total number of such visas made available under such section in that fiscal year.

The result, if this bill is passed by the US Senate, will be the doubling of the number of immigrant visas from the current average of 25,620 to 51,240 per year effective Sept. 30, 2019, beginning of fiscal year 2020.

The current allocation of employment-based visas is 140,000 under the Immigration Act of 1990.

— EB1 Priority workers: 28.6 percent of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences, or 40,000 per year. (The visa allocations for other EB categories represent a percentage of the worldwide EB preference level.)

— EB2 Members of the professions holding advanced degrees or persons of exceptional ability: 28.6 percent, or 40,000 per year.

— EB3 Skilled workers, professionals, and other workers: 28.6 percent or 40,000 per year, with 10,000 exclusively for other workers.

— EB4 Certain special immigrants: 7.1 percent or 5,000.

— EB5 Employment creation: 7.1 percent of the worldwide level, or 5,000 per year, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers.

As for visa availability for employment-based preference under HR 1044, there is no cap; the per country limit/allocation is removed.

A certain percentage of the total immigrant visas under the family and employment preference categories “shall be allotted to immigrants who are natives of a foreign state or dependent area that is not one of the two states with the largest aggregate numbers of natives who are beneficiaries of approved petitions for immigrant status under such paragraphs.”

For fiscal year 2020 the allotment is 15 percent pared down to 10 percent in the following two years.

Since the Immigration Act of 1990, when the immigrant visa numbers were increased to 226,000 family-sponsored and 140,000 employment-based, the total number of lawful permanent residents admitted into the US (from both immigrant visa applicants at consular posts/embassies overseas and those applying for adjustment of status in the US) exceeded one million – except in 2012 when the total decreased to 990,553.

Assuming a one-million average per year, approximately 200,000 visas shall be made available to countries other than China and India – the two countries with “the largest aggregate number of permanent residents admitted into the US.

The Philippines coming in third stands to benefit and share in the bonus visa allocations, in addition to the increased per-country yearly quota of 51,240.

The only cap to country limits would be 25 percent of worldwide quota under HR 1044.

Making visas unused in the EB1 and EB2 categories. HR 1044 allows the use of unused visas in the EB1 (priority workers) and EB2 (aliens with advanced degrees) for distribution of visas in the three years after passage of the bill.

No effect on priority dates and place in line. During the transition period, beneficiaries of approved petitions in the family or EB categories will keep their place in line regardless of the changes by this bill.

Winners and losers
Immigration advocates and practitioners are one in identifying the two countries to benefit from HR 1044: India and China.

While Mexico remains the undisputed king of family-based migration and overall winner in the green card race (157,227 in 2015, 172,726 in 2016 and 168,980 in 2017), the southern neighbor had very few applicants in the employment-preference categories.

In 2017, India topped the list for visa beneficiaries (23,559) under the employment-based categories, with China coming in a close second at 19,221. The total EB applicants for the Philippines was 9,341. Mexico was a distant fourth at 5,493.

Those in the US get the first shot at green cards. Those already in the US seeking to adjust their status to permanent residency stand to benefit ahead of immigrant visa applicants at consular posts.

In the non-immigrant visa categories, the Philippines has been a far third after China and India.

In 2017, the USCIS Yearly Statistics reported 2,624,321 tourist visa holders from China (mostly in the B-1 and B-2 categories); and 616,981 student visa holders and 100,005 temporary work visa holders (H-1B and H-2B categories.

India was second with 1,264,598 tourist visa holders, 181,612 with student status and 554,628 mostly in the H-1B category.

Visitors from the Philippines? Only 354,474. There were 14,609 student visa holders and 15,246 temporary workers.

In the 10-year period (2007 to 2017) India topped the list of applicants in the H-1B category, peaking to 300,902 in 2016 and bringing up a 10-year total of 2,183,112, leaving applicants from other countries—including China and the Philippines—in the dust with 296,313 and 85,918, respectively, over the same period.

Since applicants already in the US – such as H-1B holders – are already working and therefore preferred by employers for immigrant visa petitions, applicants from India and China benefit from the USCIS preference to grant adjustment of status.

Traditionally and historically, the USCIS had been able to get more numbers for adjustment of status applicants. Case in point was in July 2007 when the USCIS issued permanent residency okay to applicants already in the US without consulting the State Department.

In the July 2007 Visa Bulletin (published June 12, 2007), the State Department showed the cut-off dates for Philippine applicants in all employment-based categories as “current” except for “other workers.”

The sudden availability of visa numbers in all employment categories for the Philippines resulted in anxiety and tribulation in June, turning to disappointment and despair in the succeeding months.

 

Anxiety because visas became immediately available for that month. Despair because in the next few days, the State Department issued a “correction.”

Unavailability and retrogression
Before the sudden notice of visas becoming available to Philippine applicants in the various employment-based categories, the June 2007 Visa Bulletin showed the cut-off date for the EB3 as June 1, 2005. The cut-off date for Other Workers was Oct. 1, 2001.

In August and September 2007, all the EB categories for the Philippines remained unavailable. It was only in September of that year when a cut-off date was issued but the cut-off date retrogressed from the June announcement.

Remember that in June 2007 the cut-off date for EB3 was June 1, 2005. After the first announcement of visas being available, the State Department issued a revised announcement: no more visas were available.

The cut-off date in September 2007 was moved forward by more than a year: from June 1, 2005 in June of 2007 to Jan. 1, 2007 for the EB1, EB2, EB4 and EB5.

The EB3 category (where nurses and other professionals were classified) was given a cut-off date of Aug. 1, 2002, more than three years back from the June 2007 date. The EB3 cut-off was Aug. 1, 2002.

Other immigration bills
On Aug. 2, 2017, President Trump enthusiastically supported a bill sponsored by Republican Senators Tom Cotton of Arkansas) and Senator David Perdue from Georgia, who introduced the Reforming American Immigration for a Strong Economy (RAISE). The Act aimed at a skills-based migration while reducing the overall immigration to the US by half.

The relevant provisions of RAISE Act are:
— Establish a skills-based points system to replace the current permanent employment-visa system with a skills-based points system, similar to the systems used by Canada and Australia.

— Prioritize immediate family households. RAISE would retain immigration preferences for the spouses and minor children of US citizens and legal permanent residents while eliminating preferences for certain categories of extended and adult family members.

Consolidating visa allocation under HR 1044 and RAISE Act
HR 1044 intends to double the per-country allocation. It also allows countries (other than China and India) to share in the 200,000 plus visas that may be used from the unallocated EB1, EB2, EB4 and EB5 categories.

The RAISE Act on the other hand, intends to eliminate the F1, F2B, F3 and F4 categories. If HR 1044 is further revised to be in tune with RAISE, then there will be more visas available for employment-based visa applicants. The opposite effect will keep families divided.

Even parents of US citizens (currently classified as immediate relatives of US citizens and therefore are not subject to the per-country limits) will be eliminated.

Unifying and transforming the Trump administration bills into law to replace the current visa allocation system is uncertain in a fractured Congress in this Divided States of America.

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