The United States had about 1.4 million employment-based immigration cases winding their way through its permanent residence process in 2021. The backlog of cases is nearly ten times the total number of green cards generally made available for employment-based immigrants in most years. Skilled Indian immigrants will suffer the most from this backlog, with more than 200,000 likely to die before they could conceivably receive a green card (absent a change in the law). Another roughly 90,000 children of immigrants—mainly Indians—will “age out” of green card eligibility during their waits. Only about half of the pending Indian immigrants will likely receive green cards under current law.

Figure 1 shows the number of employment-based immigrants by year since 2018 (the first year that the government reported the data) broken down by stage in the process. As of September 2021, there were nearly 320,000 petitions pending, about 875,000 approved petitions that were wait listed because of the annual green card limits, and about 245,000 who had filed an application for adjustment of status to receive a green card (i.e. legal permanent residence).

Figure 2 shows the backlog by country of birth for approved, wait listed petitions (i.e. those approved petitions without the ability to file for permanent residence because of the green card caps). As it shows, 82 percent of the approved petition employment-based backlog was born in India. Another 12 percent was born in China, and the rest (5.4 percent) were born in other countries. This disparity is caused by the per country limits, which prevents people from any single birthplace from receiving more than 7 percent of the employment-based green cards in any year (unless the green card numbers would otherwise go unused).

Figure 3 shows the backlog for approved, wait listed petitions by category. There is almost no wait list for EB‑1 (those with extraordinary ability, multinational executives and managers, and outstanding professors and researchers). Nearly three quarters (73 percent) of the wait listed petitions are in the EB‑2 category for employer-sponsored immigrants with advanced degrees or exceptional ability. Another 16 percent are in the EB‑3 category for employer-sponsored immigrants with bachelor’s or associate degrees (or the equivalent in experience). Less than 1 percent are immigrants with job offers requiring less than 2 years of training (EB-3O). EB‑4 special immigrants (religious workers, various U.S. government-affiliated immigrants, and abandoned children) and EB‑5 investors each constituted 5 percent. While all other categories saw significant declines from 2020 to 2021, the EB‑2 wait list only barely declined.

Table 1 shows the number of employment-based immigrants wait listed by country of origin and category, as well as the projected years to wait for a green card under normal rates of green card issuances (using 2019 as the baseline). EB‑2 and EB‑3 Indian applicants filing this year (those with a master’s or bachelor’s degree) face a wait of about 90 years. Obviously, this is an impossibly long wait. As Table 1 shows, about 215,000 petitions will expire as a result of the death of the immigrant before the immigrant receives a green card, and more than 99 percent of these deaths will be Indians.

Another roughly 90,000 children of employment-based immigrants will “age out” of eligibility when they turn 21 — because only children under the age of 21 may qualify based on their parents’ application — largely children of Indian applicants. This persistent separation of families’ applications is a brutal consequence of the low green card caps, and the fact that it afflicts mainly Indian immigrant families is the result of the discriminatory country caps.

Congress should completely eliminate the green card limits for employment-based immigrants. The caps serve no purpose because nearly all wait listed, employer-sponsored immigrants are already in the United States working in temporary statuses, and the caps on investors harmfully discourage investment in the United States. These immigrants have already proven their high merit based on their employers being willing to incur the costs of getting them permanent residence. The United States should not drive talented people to live in other countries.

If Congress cannot bring itself to eliminate the overall caps, it should at least remove the country caps which shift the full burden of the overall cap onto one group (Indians), and it should index the caps to economic growth so that they do not quickly become antiquated. It should stop counting spouses and minor children against the caps, because it makes no sense to reduce the number of available workers if one of them happens to be married or have children. These reforms would improve the problems of aging out and deaths in the backlog.