Many Americans have the false impression that these carve-outs are realistic options for potential immigrants to join American society, but the government’s restrictive criteria render the legal paths available only in the most extreme cases. Even when someone qualifies, annual immigration caps greatly delay and, more frequently, eliminate the immigrant’s chance to come to the United States. Legal immigration is less like waiting in line and more like winning the lottery: it happens, but it is so rare that it is irrational to expect it in any individual case.

This study provides a uniquely comprehensive, jargon-free explanation of U.S. rules for legal permanent immigration. Some steps are simple and reasonable, but most steps serve only as unjustified obstacles to immigrating legally. For some immigrants, this restrictive system sends them into the black market of illegal immigration. For others, it sends them to other countries, where they contribute to the quality of life in their new homes. And for still others, it requires them to remain in their homeland, often underemployed and sometimes in danger. Whatever the outcome, the system punishes both the prospective immigrants and Americans who would associate, contract, and trade with them. Congress and the administration can do better, and this paper explains how.

For the first century after American independence, the United States had few restrictions on legal immigration.¹ Even when it finally adopted some rules in the late 19th century, immigrants were presumed eligible for permanent residence unless the government showed that they fell into specific and usually narrow ineligible categories.² In 1924, this presumption was flipped.³ Today, all immigrants are presumed to be ineligible, and the burden shifted from the government to the immigrant to prove that they fall into certain narrow, eligible categories.⁴ In this respect, current immigration policy is much like one of the few immigration-restricting laws of the earlier period, the infamous Chinese Exclusion Act—which also had some exceptions—but today’s restrictive law applies to all nationalities.⁵ The United States has enacted what amounts to a “Worldwide Exclusion Act.”

This restrictive system has made becoming an American a nearly impossible challenge. Immigration is now prohibited in a similar way to alcohol during Prohibition.⁶ Although it had exceptions for religious, medical, or industrial purposes, alcohol prohibition outlawed all other sales.⁷ For both alcohol and immigration, the result of prohibition has been the same: widespread violations of the law, black markets, the spread of criminal organizations, arbitrary enforcement, government corruption, and massive government expenditures of taxpayer money to stop the violations.

Like alcohol prohibition, America’s legal immigration “prohibition” also has some exceptions, which are often used as evidence that legal immigration is not strictly restricted. But this paper explains why those complicated exceptions to the immigration ban are irrelevant for nearly all people wishing to become Americans. Trying the legal immigration system as an alternative to immigrating illegally is like playing Powerball as an alternative to saving for retirement. People do win the lottery, but that does not make it a viable alternative to a 401(k) investment plan. Legal immigration is similar: many do get to immigrate legally, but the odds are so low that it is simply not rational to expect that any particular person will be selected.

According to a 2018 worldwide Gallup poll, 158 million adults who would like to immigrate permanently selected the United States as their top destination.⁸ Of course, many of these people would ultimately choose not to immigrate even if U.S. law changed, but with more-open laws, many others would certainly take their place, including the families of those who would come and people who selected other countries as their top choices. Thus, while it is not perfect, Gallup’s poll is the best available estimate of the demand for green cards. Meanwhile, administrative data indicate that roughly 32 million immigrants—adults and children—were attempting to become U.S. legal permanent residents in 2018,⁹ and the United States granted legal permanent residence to only about 1 million people (see Figure 1).¹⁰ This means that about 80 percent of people wanting to immigrate to the United States could not even attempt the process, and about 99.4 percent did not yet qualify that year. Even these percentages create the impression that the system is more open than it is because, although a select few have a small chance to immigrate through the law’s carve-outs, the vast majority have no chance at all.

The current U.S. immigration system is restrictive from the perspectives of both immigrants and Americans. In recent years, the United States has granted green cards to about 1 million immigrants annually. This amounts to about 0.3 percent of the U.S. population. As seen in Figure 2, the annual rate of legal immigration commonly exceeded 1 percent of the population in the late 19th and early 20th centuries before Congress capped legal immigration. In 2019, the immigration rate as a share of the U.S. population was 80 percent below that of the peak year of 1854. The only year when the rate approached those of the years of unrestricted immigration was 1990, when Congress waived the caps and allowed illegal immigrants to obtain green cards.

Proponents of America’s current immigration system often use comparisons to other countries to portray the U.S. system as relatively open. One common claim, for instance, is that “we allow more people into America legally than all other countries on the planet combined.”¹¹ In reality, immigration to the United States accounted for just 7.5 percent of the growth of the worldwide immigrant population from 2015 to 2020, meaning that the vast majority of immigrants are not going to the United States.¹² Another similar assertion is, “We are by far the most generous nation in the world for legal immigration.” Although the United States has accepted the most immigrants in absolute terms compared with other individual countries, fewer immigrants reside in the United States as a share of its population than in 55 other countries (or territories with independent immigration policies). The United States ranks in the bottom third among wealthy countries for the foreign-born share of its population (see Figure 3).¹³

If all 32 million immigrants who attempted the U.S. process in 2018 were added to the U.S. population, it would only bring the immigrant share of the U.S. population to 22 percent—in line with Canada (21 percent). The only way to rival countries like New Zealand (28 percent), Switzerland (29 percent), and Australia (30 percent) would be to promptly admit a majority of the 158 million who told Gallup that they would want to come. On a more reasonable time horizon for natural inflows that accounted for the population growth of U.S.-born Americans, that scale would also be insufficient.

Other countries’ policies, however, do not change the reality for people seeking to become Americans. From the average would-be immigrant’s perspective, America’s doors are legally shut. Many people would prefer to ignore the immigrant’s viewpoint, but when legal immigration is hopeless, illegal immigration should surprise no one. Nonetheless, the myth that legal immigration is relatively easy or a matter of simply waiting a few years persists. The focus then becomes solely on how to deal with the symptom of the restrictions—people crossing illegally—rather than the restrictions themselves, and legal immigration reforms fall to the wayside. Although reform could come in many ways, this paper is a starting place to understand not only that nearly all immigrants cannot come legally to America but also why they cannot and what policymakers can do to liberate American immigration policy.

This paper will describe the requirements for would-be legal immigrants to the United States to obtain a green card, a document that denotes legal permanent residence (see Box 1). Legal permanent residence is the only status that authorizes an immigrant to live and work indefinitely in the United States and later apply to become a U.S. citizen.¹⁴ The green card system was last reformed in a significant way in 1990, so this paper tracks the rules in effect in largely the same manner for over three decades.

Since 1990, no one outside the United States has been eligible for a green card unless they can prove that they fall into one of these five narrow exceptions:

1. The refugee program: Qualified refugees have less than a 0.1 percent chance of being selected for resettlement, and only a few nationalities are even considered.
2. The diversity lottery: Diversity applicants have a 0.2 percent chance of receiving a green card, and because the lottery excludes the top origin countries for legal immigrants, a majority of the world’s population is ineligible to apply.
3. Family sponsorship: Aside from the spouses, minor children, and parents of adult U.S. citizens, family sponsorships are capped. The years of waiting caused by these caps mean that—except for sponsors of spouses and minor children of existing green card holders—most sponsors in these categories will die before their relatives can immigrate.
4. Employment-based self-sponsorship: These categories are only for those who are, in legal terms, “extraordinary,” have work of “national importance,” or can afford to make at least $800,000 in investments in the United States—not options for many.
5. Employer sponsorship: An almost insurmountable barrier of bureaucratic red tape restricts employer sponsorship, and these restrictions exclude nearly all workers without college degrees, while low caps will result in many applicants dying before they can receive green cards. Employers make only 1 in 1,500 hires through this system.

Table 1 shows the number of immigrants receiving legal permanent residence by category from 2011 to 2020. Nearly four out of five legal immigrants qualified for a green card through family connections, either through family in the United States (65 percent) or a family member who qualified under one of the nonfamily categories (14 percent). Another 3 percent were refugees, 2 percent were diversity lottery winners, 5 percent were employer-sponsored workers, 1 percent were employment-based self-sponsored immigrants, and 10 percent were immigrants legalized in the United States (along with their accompanying family).¹⁵

The term “legalized immigrants” here refers to immigrants whose green card category required their presence in the United States, such as legalization applicants, asylees, victims of crimes or trafficking, abandoned children, and family of U.S. citizens who were abused or would face extremely unusual hardship if their relative was denied or deported.¹⁶ These categories are completely unavailable to immigrants seeking to immigrate legally from abroad and so will not be described in further detail in this paper. For the same reason, this paper will largely not explain the barriers to a green card after traveling legally to the United States in temporary statuses, except for temporary work visas that directly envision a temporary-to-permanent transition. It will also not explore the various paths for the roughly 3,000 immigrants annually who qualify through various U.S. government ties—primarily Afghans and Iraqis who worked with the U.S. military during wars in locations where U.S. presence has largely receded.¹⁷

With these clarifications, the flow chart in Figure 4 previews the requirements for legal immigration to the United States from abroad. Appendix A provides citations for Figure 4, and Appendix B provides a summary of the major rules by type of immigrant. As the complicated flow chart indicates, legal immigration is a labyrinth that few can navigate, and a chart like this must necessarily simplify the more complex reality. It does not show, for instance, the complicated filing and admission process but rather the rules that the filing process is supposed to enforce.

Almost every other word in the chart is a nesting doll of complicated distinctions, and this paper cannot possibly explore all of them. The most popular immigration law reference book is 2,656 pages, and its appendices contain nearly 300 pages of citations to thousands of statutes, regulations, memoranda, and legal decisions.¹⁸ Instead, this paper offers a broad but not exhaustive overview of current immigration requirements. With each requirement, a larger percentage of the world’s population loses its chance to immigrate legally, until nearly everyone who wants to come is eliminated.

During nearly all the first full century after U.S. independence, the federal government imposed almost no legal immigration restrictions whatsoever.¹⁹ Since 1875, however, it has mandated certain baseline requirements that all people must meet to immigrate to the United States.²⁰ While these rules have evolved, the baseline requirements today focus on these four broad categories:

• Health
• Criminal history
• Security profile
• Immigration law violations

Because this paper details the process for immigrants who have not already come to the United States, immigration law violations are beyond its scope. Box 2 shows a simplified version of the baseline criteria that apply to all immigrants abroad, and the first section of Figure 4 conveys this same information in a flow chart. Many of these requirements are reasonable, but others empower bureaucrats to deny Americans the right to associate with immigrants for arbitrary reasons.

All immigrants must undergo a medical examination by a U.S. government–approved physician that shows the immigrant does not have any of 15 “Class A communicable diseases of public health significance” (e.g., COVID-19, syphilis, etc.).²¹ Anyone who tests positive for one of the diseases can receive treatment and overcome the denial by testing negative.²² Immigrants must also provide proof that they have received 13 vaccines against 16 different diseases, including COVID-19, unless the government-selected physician finds that a vaccine is medically inappropriate.²³

If an immigrant opposes vaccination based on sincere moral or religious conviction, they may request a waiver of this requirement, but they must show that they oppose all vaccines.²⁴ Applicants seeking a waiver for any of the baseline requirements, including the vaccine requirement, must usually wait about an additional year for the waiver request to be processed, and nonrefugee applicants must also pay an additional $930 (nearly triple the normal immigrant visa fee).²⁵ Moreover, waivers of the baseline criteria for legal immigration are discretionary, meaning that the government may refuse to grant one even if the applicant is qualified for it.²⁶

The law also bars immigrants with any physical or mental disorder that threatens others.²⁷ This rule is often invoked for alcoholics who have engaged in multiple instances of drunk driving or alcohol-related violence, but it may also be invoked against mentally ill criminals. Immigrants who show they are capable of undergoing successful treatment for the disorder may apply for a discretionary waiver.²⁸ The one health requirement not focused on protecting the public prohibits “drug abusers or addicts” not in sustained remission (usually 12 months).²⁹ Some physicians may screen for drug use, and all physicians ask about it.³⁰ Because lying during the immigration process is a criminal offense, some applicants admit to having used controlled substances, particularly drugs like marijuana that are legal in some countries or states but can still trigger a denial.³¹ Refugees can receive a waiver of the health grounds of inadmissibility if a waiver is deemed in the public interest or necessary for family unity or humanitarian reasons.³² Again, waivers are discretionary, and the evaluation of the vague waiver criteria is subjective.

Anyone coming to violate any U.S. law is unequivocally barred.³³ Nine specific types of past criminal actions are also unwaivable, permanent bars to receiving legal permanent residence in the United States:

• Murder with a conviction or admission
• Extrajudicial killing
• Torture
• Genocide
• Terrorism
• Material support for terrorism without a duress exemption
• Recruitment of child soldiers
• Severe human trafficking
• Drug trafficking³⁴

Money laundering and—except for simple possession of 30 grams or less of marijuana—any nontrafficking drug crime (with a conviction or admission) are also generally unwaivable offenses,³⁵ though refugees may receive a discretionary waiver (again only if it is deemed in the public interest or necessary for family unity or humanitarian reasons).³⁶

Any two criminal convictions with aggregate sentences of more than 5 years, prostitution offenses in the past 10 years (including actions legal in the home country), simple possession of 30 grams or less of marijuana (with a conviction or admission), and crimes “involving moral turpitude” (with a conviction or admission) also presumptively bar immigration but may be waived in limited circumstances.³⁷ Moral turpitude involves an intent to commit a “morally reprehensible” offense.³⁸ The precise interpretation of this vague definition is a constantly evolving and shifting standard over time and between adjudicators.³⁹ The State Department lists about 47 crimes that will likely involve moral turpitude.⁴⁰ Some examples of crimes that courts have considered involving moral turpitude include most assaults, aggravated battery, sexual assault, adultery, bigamy, prostitution, theft, aggravated driving under the influence, and welfare or check fraud.⁴¹

Immigrants may request that the government waive the presumptive bars (i.e., not the unwaivable offenses) if the offense occurred more than 15 years ago (or 10 years for prostitution without a conviction or admission) and the immigrant can demonstrate full rehabilitation.⁴² Spouses, parents, and children of U.S. citizens and legal permanent residents can also receive a waiver of the presumptive bars by showing that a denial would cause their relative “extreme hardship,” suffering far beyond the normal consequences of a denial.⁴³ If the government agrees it is necessary for family unity, humanitarian purposes, or the public interest, refugees may request a waiver for any crime except the unwaivable crimes and anything involving persecution of a protected group.⁴⁴ For all immigrants, however, the government will deny waivers for “violent or dangerous” crimes except in exceedingly unusual situations (e.g., a national security agency requests the waiver).⁴⁵

Aside from the criminal bars, the law also prohibits immigrants deemed security threats to the United States, even if their behavior is not necessarily criminal. This includes associates of government-designated terrorist organizations and anyone who publicly supports terrorism or a terrorist organization, as well as their immediate relatives who knew of their terrorist activities in the past five years.⁴⁶ Spouses and adult children of drug traffickers who knowingly benefited from the drug trafficking in the past five years are barred.⁴⁷ Anyone whom the secretary of state personally determines could have “potentially serious adverse foreign policy consequences” for the United States is also excluded.⁴⁸ The law also bars voluntary members of the Communist Party or another totalitarian political party, with an exception for applicants whose membership ended at least two years ago (or five years for a totalitarian dictatorship) if they are deemed not to be a threat to the United States.⁴⁹ A spouse, child, or parent of a U.S. citizen or a spouse or child of a legal permanent resident may request a waiver of this bar.⁵⁰ Presidents also have unfettered authority to ban anyone whom they determine to be “detrimental” to the interest of the United States.⁵¹ This authority was used frequently during the COVID-19 pandemic to restrict travel, as well as by then president Donald Trump to limit immigrants from certain countries for alleged security concerns.⁵²

Finally, all immigrants must meet numerous application filing requirements. These requirements include the need to file an application form at the designated locations and times with the requested information and evidence.⁵³ Immigrants must be willing to give the government detailed information about themselves and their families and to provide their photos and fingerprints.⁵⁴ Every year, the number one reason for an immigrant visa denial is the failure to file it properly or include the required evidence in the required manner.⁵⁵ From 1991 to 2020, 1.4 percent of immigrant visa applications (195,053) received a final denial under the criminal (136,093), health (39,126), or nonprocedural security (19,834) grounds of ineligibility.⁵⁶ Meanwhile, 16 percent (2.5 million) received a final denial based on procedural grounds. Of course, some other immigrants never apply at all because they know that these bars would make them ineligible.

Protecting the country against genuine threats to the health and safety of Americans is a reasonable exercise of government power, but the baseline criteria for legal immigration pose both substantive and procedural problems for nonthreatening immigrants. Substantively, several requirements bear no relationship to public health or safety. Personal drug use and voluntary prostitution are not behaviors that violate the rights of other people. They should not be grounds for a ban on legal permanent residence in this country at all—let alone be, in the case of drugs, one of the only criminal offenses that most immigrants can never have forgiven. Only crimes that truly threaten others should bar a person’s right to immigrate to the United States.

Procedurally, the time it takes to conduct these health and safety checks ultimately means that immigrants cannot directly travel to the United States, even if they qualify and their lives depend on it. This was something that Afghan interpreters who helped the U.S. military discovered when trying to escape before the Taliban takeover in 2021.⁵⁷ Another issue is that the government may bar immigrants based on certain offenses without even a conviction. It may use secret evidence that applicants have no chance to review or rebut.⁵⁸ Some wrongfully accused people can also be denied based on a foreign country’s claims, including claims made against political dissidents.⁵⁹ Finally, the fact that the president has the authority to ban anyone in the world for any reason at a whim leaves the entire system vulnerable to arbitrary restrictions.⁶⁰ Congress should restrict presidential authority to ban immigrants and should permit judicial review of those determinations.

Summary: Very few people can receive a green card through the refugee program because

• the program has a very low cap established by the president;
• the program narrowly defines who qualifies as a refugee;
• the program excludes most nationalities as not “of concern” to the United States; and
• refugees usually cannot apply directly without government selection.

U.S. immigration law even bans immigrants who meet the baseline criteria unless they fall into one of the five narrow exceptions:

• the refugee program,
• the diversity lottery,
• family sponsorship,
• employment self-sponsorship, or
• employer sponsorship.

Figure 5 shows the number of new legal permanent residents receiving green cards from 2001 to 2020 by broad type. The first exception to the ban on legal immigration is for refugees subject to a cap determined annually by the president. From 2001 to 2020, 528,447 refugees (not including their spouses and children who qualify through their family relationship) became legal permanent residents, accounting for 3 percent of the green cards issued during that time.

At the most basic level, refugees are people who fear return to their homes.⁶¹ According to the United Nations, about 100 million people were living in a state of forced displacement from their homes as of mid-2022, but hundreds of millions of people likely have good reasons to fear what may happen to them even if they have not yet moved.⁶² Barely 1 in 5,000 displaced persons will be admitted to the United States under the refugee program. The U.S. refugee program excludes nearly all people fearing return because it has both few spots and restrictive criteria. Box 3 shows a simplified version of the refugee program’s major requirements. The second section of Figure 4 shows these requirements in a flow chart.

As an initial matter, refugees must prove past persecution or a well-founded fear of future persecution in their home country (or a “credible basis for concern” in the case of religious minorities from Iran or the former Soviet states).⁶³ A well-founded fear includes even a 10 percent chance of future persecution.⁶⁴ Fear alone, however, is not enough to obtain admission through the U.S. refugee program. The other onerous requirements effectively bar almost every persecuted person in the world.

Although refugees may explain why they lack evidence for their claims, U.S. refugee officers want applicants to bring whatever evidence they could be expected to have when they apply, including items such as threatening letters or messages, medical or police reports, or other legal documents.⁶⁵ Every refugee applicant is interviewed at least three times and often other times along with their spouse and minor children who are coming with them.⁶⁶ All refugees must be deemed credible, and lacking complete consistency among all these interviews can trigger a denial even if the inconsistencies are irrelevant to proving the persecution.⁶⁷

Even if the applicant establishes a well-founded fear, the U.S. government does not regard certain types of threats as persecution. The persecutor must be either a foreign government actor or someone whom the foreign government is unable or unwilling to control (such as a criminal organization that operates freely).⁶⁸ For instance, a man whom a gang twice attempted to kill was not considered a “refugee” despite his well-founded fear.⁶⁹ The U.S. government is often willing to credit even minimal efforts by the foreign government as evidence that it is able and willing to stop private persecution. In one case, the fact that the government arrested the perpetrator, even though it promptly released that person, was enough to reject the applicant.⁷⁰ The government regularly demands that applicants show that they reported the persecution to the authorities, even in locations where the police often do nothing about it.⁷¹

Certain religious minorities from the former Soviet Union and Iran with U.S. sponsors may demonstrate concern about persecution based on more minor incidents,⁷² but for other applicants, only five broad categories qualify as persecution:

• serious physical harm;
• coercive medical or psychological treatment;
• invidious prosecution or disproportionate punishment;
• severe discrimination; and
• severe criminal extortion or robbery.⁷³

The government does not treat many actions that could provoke fear as persecution. Some examples include verbal harassment, death threats, a single wrongful arrest, a single detention of several days, illegal searches, military conscription against conscientious objections, expulsion from public school, and legal discrimination not deemed “severe.”⁷⁴ Moreover, persecution must be specifically targeted, so persecution sufficient to qualify for refugee status cannot arise solely as the result of societal breakdown, armed conflict, or war.⁷⁵ This means that victims of the biggest forced displacement events do not qualify for refugee status based on those events.

By itself, however, persecution is not enough. Except for victims of forced abortion or sterilization, a reason for the persecution must be one of five protected grounds:

• race,
• religion,
• nationality,
• political opinion, or
• membership in a particular social group whose membership is based on a characteristic that one either cannot change or should not be forced to change.⁷⁶

Notably, this list excludes age, disability, sex, and gender—common grounds for protections under U.S. employment law but which are not by themselves grounds for refugee status.⁷⁷ These characteristics could sometimes be defining features of a particular social group, but that is much more difficult to prove because the government requires that the applicant demonstrate that their home society recognizes this group as socially distinctive in some way.⁷⁸ For instance, the social group designation of “Iranian women” who are forced to wear certain distinctive coverings was deemed overbroad.⁷⁹ Separately, proving the intent of a persecutor can be very difficult. The government will not merely infer persecution on a protected ground when there is “violence plus disparity of views” between the parties.⁸⁰ Even victims of attempted assassinations who had received written threats for their political views have been rejected because they could not prove the connection between the two events.⁸¹

Immigrants who can prove a well-founded fear of persecution based on a protected ground are legally refugees, but U.S. law still does not authorize their admission. They must further show that they have not firmly resettled elsewhere, meaning that no country to which they have been forced to flee has given them permanent legal status.⁸² Despite this mandate, the government also requires nearly all refugees to have already fled their home country.⁸³ The United Nations High Commissioner for Refugees (UNHCR) first figures out whether the refugees can return home. If they cannot return home, they may be referred to the U.S. government’s refugee processing, which generally took more than two years pre-pandemic and was taking more than five years in 2022.⁸⁴ This means that the refugee must somehow be able to maintain residence in another country for several years—in some cases, more than a decade—yet not possess an offer of permanent resettlement during that time.

Refugees must also flee to specific countries where the United States conducts refugee processing. In 2019, U.S. refugee officers visited 56 of about 200 countries to conduct refugee interviews, but that number dropped to 10 countries in 2020.⁸⁵ In theory, U.S. embassies can refer refugees for resettlement, but they do not do so except in extraordinarily rare circumstances (mainly someone “personally known to the embassy,” such as a prominent activist).⁸⁶ Without U.S. family, refugees must almost always obtain a referral from the UNHCR. Refugees must register at a UNHCR office and be determined to be a refugee before the UNHCR will consider referring them.⁸⁷ The UNHCR has personnel in about two-thirds of countries,⁸⁸ but as Figure 6 shows, only 32 countries were the points of departure for 99 percent of the refugees whom the UNHCR referred to the United States in 2021.⁸⁹ A majority of UNHCR-referred refugees to the United States departed from just five countries: Tanzania, Turkey, Rwanda, Egypt, and Jordan.

The only exceptions to the requirement to flee to a third country or receive a referral from the UNHCR are for certain family-sponsored cases. Spouses, children, and parents of refugees, asylees, or special immigrant visa recipients (e.g., Afghans or Iraqis with U.S. military connections) can be classified as Priority 3 (P‑3) refugees and can be admitted without a referral. Religious minorities in former Soviet states and Iran with immediate relatives in the United States (or, in some rare cases for Iranians, personal friends), and some Central Americans with U.S. family, can also be classified as Priority 2 (P‑2) direct-access refugees and can be admitted without a referral.⁹⁰

Except for the aforementioned categories and refugees under the P‑2 group referral program (currently only certain Congolese or Burmese refugees), the UNHCR limits non-family-based refugee referrals to just six groups:

• survivors of torture or violence;
• refugees with unmet medical needs;
• refugees in need of legal or physical protection in their new country of residence (such as being threatened to return to their home country to be persecuted);
• women facing persecution in their new country;
• children or adolescents at risk in their country of residence; and
• refugees lacking any foreseeable durable alternative to resettlement (i.e., a protracted displacement situation with no hope for local integration).⁹¹

These categories would still include millions of people, so recognizing that countries will not accept that many refugees, the UNHCR usually restricts referrals to only those facing ongoing threats to life or basic liberties.

Refugees in the aforementioned narrow P‑2 and P‑3 categories who are not subject to these UNHCR referral restrictions or are able to apply to the program without a referral through family sponsorship accounted for about half of all refugees resettled from 2018 to 2020.⁹² The odds of refugees outside those categories being resettled is even lower. Moreover, since referrals are based on the willingness of governments to accept them, barely 0.1 percent of refugees are referred anywhere in the world for resettlement,⁹³ and since refugees cannot choose their destinations, they could be referred to Europe, Canada, or elsewhere.⁹⁴ In 2021, just 28 percent of UNHCR referrals were to the United States.⁹⁵

The United States will only accept refugees if they fit into a category of “special humanitarian concern” to the United States, a concept it has always intentionally defined narrowly to apply to certain nationalities.⁹⁶ Figure 7 shows the 30 countries of nationality for U.S. refugees in 2021.⁹⁷ Three-quarters came from just five countries: the Democratic Republic of the Congo (43 percent), Syria (11 percent), Afghanistan (8 percent), Ukraine (7 percent), and Burma (7 percent).

After a referral, the government still denied about 16 percent of refugees whom it permitted to go through the process from 2016 to 2021.⁹⁸ Finally, admissions will occur only if the United States has refugee slots available under the president’s annual refugee limit determination.⁹⁹ In 2022, the United States is on pace to accept fewer than 25,000 refugees (and their spouses and minor children) worldwide.¹⁰⁰ Given the 100 million displaced persons and about 20 million UNHCR-recognized refugees outside their countries of origin, this is an acceptance rate of 0.02 percent of the forcibly displaced population and 0.1 percent of the UNHCR-recognized refugee population.¹⁰¹

Figure 8 shows the number of forcibly displaced persons and the number of refugees admitted to the United States. The rate of acceptance of displaced persons has fallen by 96 percent since 1990. The rate of acceptance varies widely between countries. In 2022, about 14 percent of Moldovans recognized as refugees by the UNHCR (507 of 3,620 individuals) were admitted as refugees to the United States.¹⁰² Moldovan refugees were about 100 times more likely to be admitted than Iraqi refugees (0.14 percent), and Iraqi refugees were nearly 100 times more likely to be admitted than Cameroonian refugees (0.0014 percent). The higher rate for Moldovans is the result of the P‑2 direct access program that does not require a referral for certain religious minorities from former Soviet states.

In October 2021, President Biden raised the refugee limit to 125,000 for fiscal year 2022.¹⁰³ The agencies admitted only about 25,000.¹⁰⁴ Although the president maintained the same cap for FY 2023, the government is currently taking so long vetting, interviewing, and otherwise processing most refugees that it will likely again be unable to process 125,000 in a single year. Processing is not the only issue; the final hurdle for refugees is that a refugee resettlement nonprofit must be willing and able to sponsor them.¹⁰⁵ Until January 2023, the government had prohibited any organization other than nine designated nonprofits from acting as the sponsor of a refugee.

In November 2021, the government suspended resettling refugees until January 2022 after the resettlement organizations said they lacked the resources to find refugees housing, jobs, and integration services.¹⁰⁶ Although other organizations insisted that they did have the resources to help them, the suspension guaranteed the failure to reach the refugee cap.¹⁰⁷ Partly in response to this situation, in January 2023, the Biden administration began allowing groups of five private individuals to act as sponsors for individuals already referred for refugee resettlement.¹⁰⁸ The groups must raise $2,375 in cash and in-kind contributions per refugee sponsored and commit to support the refugees for 90 days.

Low refugee caps eliminate the possibility of acceptance for nearly all refugees. U.S. presidents have established refugee caps that are largely based on congressional funding for refugee resettlement.¹⁰⁹ Ideally, refugees should be able to fly directly to the United States, but one way to vastly improve the current model would be to allow Americans to sponsor refugees outside the refugee limits if they agree to cover the cost of bringing those refugees to the United States. Under this model, churches, charities, and employers in need of workers could agree to bring refugees over if they met the refugees’ basic needs for a given period, vastly increasing the country’s capacity for resettlement. This would also remove the unnecessarily narrow referral criteria.

The Biden administration has already piloted a successful private sponsorship program for Ukrainians, but the program only grants parole, which is a temporary status, not a path to a green card. In October 2022, it created another parole sponsorship program for Venezuelans and, in January 2023, that program was expanded to Cubans, Haitians, and Nicaraguans. Separately, in January 2023, the State Department announced the creation of a program where U.S. sponsors can apply to cover the cost of resettling a refugee already referred to the program as a means to increase the capacity of the program to resettle refugees.¹¹⁰ Although its announcement states that it plans to expand this model to allow sponsors to select specific refugees, it has not—as of March 2023—opened this path yet.

At the same time, the requirement for most applicants to be outside their countries of origin and the extremely prolonged process make the refugee program not an option for refugees fleeing immediate danger. The government must develop procedures to accept and adjudicate applications for those who claim an imminent threat in days, not years. The Ukrainian parole program is proving that it is possible for the government to vet applicants in far less time.¹¹¹ One way to expedite the process for referred refugees would be to recognize the UNHCR’s refugee status determination. Another idea would be to allow refugees to apply to U.S. consulates or embassies once they have a UNHCR status determination and then streamline the vetting process to investigate only criminal or security grounds of inadmissibility rather than the persecution claim.¹¹²

Nonrefugee immigrants must satisfy additional baseline requirements to apply (see Box 4). They must obtain a birth certificate, an unexpired passport, a police “certificate” from the domestic authority regarding any criminal history, and other civil documents relevant to their case (e.g., a marriage license).¹¹³ Immigrants must produce police certificates from every local authority where the immigrant has resided for at least six months in their country of residence since the age of 16 as well as any other countries where the immigrant has resided for more than a year.¹¹⁴ These various documents cost money in many countries, and some governments may take several months or even longer to produce them.¹¹⁵ If the U.S. government deems the local documents “unreliable,” it can also require the applicant to produce additional secondary evidence.¹¹⁶

Nonrefugee immigrants must also cover various costs of the immigration process and meet other economic requirements. The U.S. legal immigration system is largely supported by applicant fees. Nonrefugee applicants must afford the immigrant visa fee ($330 for the diversity lottery winners, $325 for family-sponsored immigrants, $205 for religious workers, and $345 for other employer-sponsored and self-sponsored workers¹¹⁷) and the $220 immigrant fee to receive their green cards after they arrive.¹¹⁸ Also unlike refugees, they must afford the cost of traveling to an in-person interview with a consular officer.¹¹⁹

Nonrefugee immigrants must also cover the cost of the medical exam, which typically falls between $100 and $500.¹²⁰ The medical exams are in the city with the U.S. consulate or embassy and may require multiple appointments if the immigrant needs a series of vaccinations, which could necessitate obtaining repeated overnight housing. The United States has no immigrant visa processing consulates in nearly 70 countries (mostly on a permanent basis), so immigrants from those countries must obtain travel authorization to another country to apply, which is often difficult and expensive by itself.¹²¹ These costs often require applicants to borrow money to cover them, which is a risk since there is no guarantee of approval.¹²²

The law also states that nonrefugee immigrants may not become permanent residents if they are “likely” to become a “public charge” to the United States.¹²³ The government has defined this term to mean likely future use of cash public benefits as the immigrant’s primary income or long-term institutionalization at public expense.¹²⁴ From FY 2000 to FY 2020, about 229,000 immigrants were initially denied an immigrant visa for being a likely public charge, but about 188,000 eventually overcame those denials.¹²⁵ The implementation of the public charge rule differs for family-sponsored immigrants, diversity lottery winners, and employer-sponsored immigrants, so it will be discussed in more detail in the following sections.

Summary: Few people can receive a green card through the diversity visa lottery because

• only certain nationalities can apply, excluding most of the world’s population; and
• the lottery has an extremely low limit on the number of visas.

The diversity visa lottery is the second exception to the U.S. ban on legal immigration. From 2001 to 2020, 471,302 immigrants received a green card through the lottery (not including their family members traveling with them), accounting for 2 percent of all green cards issued.¹²⁶ Other than the narrow employment self-sponsorship paths explained below, the diversity visa lottery is the only option for most potential immigrants to directly apply for green cards without lining up a U.S. sponsor (though the public charge rule commonly necessitates a sponsor anyway). Nonetheless, a diversity lottery green card is out of reach for nearly all immigrants because only certain countries can apply and its cap is extremely low. Box 5 summarizes its requirements. The third section of Figure 4 shows these requirements in a flow chart.

The public charge rule as applied to diversity lottery winners requires applicants to demonstrate their ability to support themselves and any accompanying family members at or above the poverty line.¹²⁷ For the continental United States in 2023, the poverty line was $14,580 annually for a single person or $30,000 annually for a family of four.¹²⁸ Consulates have wide discretion about what kind of evidence can be used to satisfy this requirement, and the quality of the evidence varies significantly among them. To show their ability to support themselves, applicants must have one of the following: a job offer, sufficient assets, U.S. sponsors, or education.

First, applicants may prove their ability to support themselves using a job offer if it is an immediate offer of year-round, nonseasonal, nontemporary employment in the United States that will provide an annual income equal to or exceeding the poverty line.¹²⁹ Applicants usually need to submit notarized letters from prospective employers describing the job and the skills that qualify the applicants for the position.¹³⁰ These are not easy tasks because it is difficult to get a job guarantee from abroad, particularly when the immigrant cannot know in advance when or whether they will receive an approval. Second, if a job offer is unavailable or insufficient, lottery applicants may show assets sufficient to support their household to make up for having no job or a low-paying job.¹³¹ No uniform rule for the total value of these assets (e.g., savings, stocks, real estate, etc.) exists across consulates, and individual consulates are not transparent about what value is required. A general rule seems to be that the assets plus prospective income should at least be close to the poverty line.¹³² However, some consulates set significantly higher thresholds.¹³³

Third, without sufficient jobs or assets, immigrants may submit an affidavit of support from a U.S. family member or close personal friend who has a U.S. immigration status that enables them to work legally for an indefinite period.¹³⁴ The sponsors must meet the income or asset thresholds based on a household size that includes the immigrant’s family, and they also must agree to allow the government to share their financial information with welfare agencies.¹³⁵ The government restricts the use of affidavits from casual friends, so some portion of the diversity lottery is effectively family-sponsored immigration.¹³⁶ Diversity lottery immigrants can sometimes struggle to find a sponsor since they are exclusively from countries with low immigration rates to the United States and are less likely to have U.S. contacts. Fourth, some consulates, mostly in developed countries, allow diversity immigrants to qualify based on higher education and enough cash for a couple of months to find a job.¹³⁷

In addition to the nonrefugee baseline requirements, the diversity lottery requires applicants to have either a high school diploma (or foreign equivalent) or two years’ job experience within the past five years in an occupational category requiring two years of experience or training (see Box 5).¹³⁸ Some foreign high school degrees do not qualify as “equivalent”: for instance, those requiring less than 12 years of education to obtain, those from part-time schools, those from fully vocational schools, and those from schools that would not immediately qualify the immigrant to apply to a university.¹³⁹ The government interprets two years of training to mean jobs generally requiring a bachelor’s degree.¹⁴⁰ Without a high school degree, for instance, a mobile heavy equipment mechanic does not qualify, even though the Department of Labor says it requires “one or two years of training,” because the low end of the range is less than two years.¹⁴¹ Nonetheless, diversity lottery winners commonly do have a college degree because college graduates are more likely to hear about and afford the fees and other financial requirements.¹⁴²

The lottery requires the participant (or their spouse) to have been born in a “low immigration” country, defined as anywhere from which fewer than 50,000 individuals received U.S. legal permanent residence through family- or employment-based categories in the most recent five-year period.¹⁴³ For FY 2023, this rule excluded 19 countries and the United Kingdom and its dependent territories as well as Hong Kong (see Figure 9).¹⁴⁴ The two largest countries in the world in terms of population (India and China) have always been excluded, and for FY 2023, the most common origin countries for illegal border crossers (Mexico, El Salvador, Guatemala, and Honduras) were also excluded.¹⁴⁵ Altogether, the majority of the world’s population cannot apply for the diversity visa lottery solely because of their county of birth.

Even if applicants meet all these requirements, they must still win the lottery, which is supposed to award almost 55,000 green cards each year.¹⁴⁶ But the government regularly wastes a significant portion of this amount by not processing the applications before the end of the year. In 2019, 22.2 million people (including spouses and minor children of the applicants) entered the lottery, and only 45,889 individuals received permanent residence through the program.¹⁴⁷ In 2020, 23.2 million entered, and only 19,125 received green cards because the government refused to process diversity visas at many consulates abroad during the pandemic.¹⁴⁸ Given the falling odds, the number of people who entered the lottery dropped to 11.8 million in 2021, and only 18,912 green cards were issued that year.¹⁴⁹ Thus, the overall odds of winning the lottery and obtaining a green card were between 0.1 and 0.2 percent in those years (see Figure 8).

Diversity lottery green cards are allocated first by region and then by country, with no single country able to receive more than 7 percent of the total.¹⁵⁰ These quirks and differences in application rates between countries mean that the odds for applicants differed widely, from 0 percent for immigrants from several countries to over 8 percent for those from the Democratic Republic of the Congo.¹⁵¹ Thanks to increasing awareness of and participation in the lottery around the world, the overall odds of entering the lottery, winning it, and obtaining a visa have fallen by nearly 90 percent since the first worldwide lottery was held for FY 95 (see Figure 10).¹⁵²

The financial and education requirements, ineligible country list, and the low visa cap render the diversity lottery program an unrealistic option for nearly all potential immigrants. Before the Immigration Act of 1990, immigrants in any country could theoretically “get in line” for a green card as long as they met the baseline requirements.¹⁵³ Starting in 1925 for the Eastern Hemisphere and in 1969 for the Western Hemisphere, the United States assigned a green card cap to each country.¹⁵⁴ Within the cap, certain immigrants—mainly family members of U.S. citizens and certain employees of U.S. businesses—would move to the front of the line, but anyone meeting the baseline criteria could apply and receive an immigrant visa after waiting. However, starting in 1978, these “preference” categories consumed the entire cap, which meant that for the first time ever, all immigrants had to fall into one of the preference categories.¹⁵⁵

In 1990, Congress formally eliminated the chance to apply outside the specified categories.¹⁵⁶ To partially remedy the fact that immigrants from countries with fewer immigrants here already would not be able to immigrate through a primarily family-based system, Congress created the diversity lottery program but added the educational (or employment) requirement on top of the baseline criteria.¹⁵⁷ The diversity lottery program demonstrates how extremely restrictive America’s legal immigration system is. There was never any reason to eliminate the ability to apply for a green card under the baseline requirements or to cap the number of green cards. Even though the diversity lottery program imposes the additional education and work history requirements, immigrants who qualify cannot simply receive a green card.

Congress should eliminate the program’s cap and country restrictions. No social or economic research has demonstrated that the United States has reached the optimal amount of immigration,¹⁵⁸ and a substantial body of evidence indicates that the United States would benefit from a greatly expanded flow of immigration.¹⁵⁹ All nonrefugee immigrants already must demonstrate their ability to support themselves, so a cap only arbitrarily denies legal immigrants who would, by the government’s assessment, contribute to the United States. Economic demand would provide the final say on the number of green cards, not a majority of congressional members decades ago. Even if Congress adopted this reform for only the Western Hemisphere, largely reversing the cap it imposed in the 1960s, it could greatly reduce illegal immigration and provide a pool of workers for U.S. businesses that need them.

Summary: Few people can receive a green card through family sponsorship because

• most potential immigrants have no qualifying U.S. citizen or legal permanent resident relative in the United States;
• the law limits qualifying relationships to a small number of close relatives; and
• family sponsorships have a low, outdated cap last updated in 1990.

Family-sponsored immigrants received about 79 percent of green cards from 2011 to 2020 (see Table 1).¹⁶⁰ The most basic family-sponsored requirement for immigrants coming from abroad is that, except for widows or widowers of U.S. citizens, a qualifying relative must be willing to sponsor the immigrant and, usually, petition the government to request that the immigrant family member receive a green card.¹⁶¹ Setting aside refugees and certain legalized immigrants (e.g., asylees), all relative sponsors must be either a U.S. citizen or a legal permanent resident.

Figure 11 shows the relationships that can qualify an immigrant for family sponsorship, but the fine print contains significant restrictions on these relationships. The relationships include only the following:

• spouses;
• parents, if the sponsor is a U.S. citizen over the age of 21, including stepparents if the stepparent married the sponsor’s parent when the sponsor was younger than 18;
• siblings, if the sponsor is a U.S. citizen older than 21, including stepsiblings if the stepparent married the sponsor’s parent before the sibling was 18;
• brothers- or sisters-in-law, only as a dependent applicant of a sponsored sibling;
• nieces and nephews, only as dependents of a sponsored sibling and only if unmarried and younger than 21;
• children, excluding married children aged 21 or older of legal permanent residents and including stepchildren if the sponsor married their parent before the child was 18;
• children-in-law, only as dependents of a sponsored child (except for a legal permanent resident’s child younger than 21); and
• grandchildren, unmarried and younger than 21 only as dependents of a sponsored child.¹⁶²

Many relations are never eligible: grandparents, parents-in-law, a sponsor’s child’s parent who is not married to the sponsor (i.e., a coparent), aunts or uncles, cousins, second cousins, great-grandparents, great-grandchildren, grandchildren-in-law, second nieces or nephews, and more-distant relations. It is worth emphasizing that siblings-in-law and children-in-law also only qualify as a dependent applicant of their spouses. Likewise, nieces, nephews, and grandchildren only qualify as dependents of their parents if their parents are qualified and if they are unmarried and younger than 21.¹⁶³ A common problem for these dependent children is that though they might be younger than 21 when their relative’s petition was approved, they can turn 21 and “age out” of eligibility during the long wait for a cap spot to become available before they have the chance to apply.¹⁶⁴

Table 2 summarizes the requirements for these immigrants. Children born to legal permanent resident mothers during a temporary trip abroad (or a parent with a valid immigrant visa who has yet to travel to the United States) have the easiest path, which has effectively no requirements besides coming to the United States before the child turns two years old or during the validity period of the immigrant visa.¹⁶⁵ Their parents do not even need to apply for them before they travel to the United States.

Other sponsors must generally pay a $535 fee to petition for relatives to be granted permanent residence.¹⁶⁶ This is separate from the $325 fee that the immigrant must pay to receive an immigrant visa after the petition is approved. Aside from children born abroad to permanent residents, the only other fee exemption is for dependents—spouses and unmarried children younger than 21—coming with a primary applicant (including a non-family-sponsored immigrant). After paying the fee, two groups can receive a green card outside any caps without any other restrictions: orphans younger than 18 who were fully adopted by U.S. citizens before age 16 and widows or widowers of U.S. citizens who died in the past two years.¹⁶⁷

Other than orphans, widows, and the aforementioned children born abroad, all other nonrefugee family-sponsored immigrants from abroad (and employer-sponsored immigrants, if a relative has a significant ownership interest in the employer) must fulfill the unique family-sponsored public charge rules to prove that the sponsor can support them once here.¹⁶⁸ First, the sponsor must be willing to pay $120 and submit an “affidavit of support.”¹⁶⁹ The affidavit is a legally enforceable contract between the U.S. government and the sponsor. It attests to the sponsor’s willingness to reimburse the federal government for any federal means-tested benefits the immigrant may use until they are either (a) credited with the equivalent of 10 years of work in the United States or (b) become a U.S. citizen.¹⁷⁰ Although no administration has attempted to enforce these contracts, the regulations permit an immigrant to sue a U.S. sponsor for the promised support.¹⁷¹ The contract continues to have effect even after, for example, a divorce, and the immigrant has no responsibility to attempt to support themself.¹⁷² These risks may discourage family sponsorships.

Sponsors must further prove that they have household incomes of at least 25 percent above the poverty line, including the immigrant’s family as part of the sponsor’s household.¹⁷³ For instance, a U.S. citizen with a spouse and two dependent children sponsoring a sibling who also has a spouse and two dependent children must demonstrate a household income of 25 percent above the poverty line for a family of eight ($63,200 in 2023).¹⁷⁴ If the new immigrant will be part of the sponsor’s household when they receive a green card, the regulations allow them to contribute to the required household income, but they can only use income from a job or source that will continue after they immigrate.¹⁷⁵ The government does not accept offers of employment as proof of income that will continue, so immigrants from outside the United States (this paper’s focus) cannot contribute to the required income amount at all through a U.S.-based job.¹⁷⁶

If the sponsor and immigrant cannot prove the required income, they have two options. First, they can show that net savings (cash or assets easily convertible to cash minus liabilities) for the immigrant and sponsor collectively equal five times the shortfall, or three times in the case of a spouse or child of a U.S. citizen.¹⁷⁷ For instance, if the required income were $63,200 and the household income were $35,000, net assets would need to be $141,000 (or $84,600 for a citizen’s spouse or child). Second, if assets are inadequate, they can recruit a joint sponsor who can be any adult U.S. citizen or legal permanent resident living in the United States who can fully meet the income or savings requirements and is willing to sign the affidavit of support contract with the government.¹⁷⁸ If the joint sponsor’s income is insufficient to cover the immigrant, other joint sponsors must be recruited for the spouse and children, or the family will have to separate.

Beyond the limited types of qualifying relatives, the most important restriction on family-sponsored immigration is the cap. Just four types of relatives have no numerical limit:

• children younger than 2 born abroad to legal permanent residents or immigrant visa holders;
• spouses of U.S. citizens (includes widow[er]s);
• unmarried children younger than 21 of U.S. citizens (includes fully adopted orphans); and
• parents of U.S. citizens if the sponsor is aged 21 or older.¹⁷⁹

Unsurprisingly, the uncapped categories have accounted for nearly half of all green cards in recent years. Although they have no cap, their numbers are subtracted from the 480,000 annual cap available for other family-sponsored immigrants until the cap reaches a floor of 226,000, at which level the family-sponsored cap has stayed every year since the early 1990s.¹⁸⁰

In 1992, when the most recent update to the caps took effect, the capped categories (213,000) received only slightly fewer green cards than the uncapped categories (237,000). But since the law allowed the uncapped categories to fluctuate with demand, soon their numbers more than doubled. In 2016, they reached a high of nearly 567,000. Meanwhile, the cap permitted almost no growth in the capped categories, and their backlog grew dramatically from about 3.3 million in 1992 to 6.9 million in 2021 (see Figure 12).¹⁸¹ If Congress had merely allowed the cap to grow proportionately to the growth in the uncapped categories, an additional 5 million family-sponsored green cards would have been issued, and the backlog would be far less severe.

The capped refugee, family-sponsored, employer-sponsored, and self-sponsored categories all permit primary applicants to sponsor their spouses and unmarried children younger than 21.¹⁸² These spouse and minor child “dependents” cannot come with immigrants under the uncapped categories (for spouses, minor children, and parents of U.S. citizens).¹⁸³ This rule creates problems. If an adult U.S. citizen’s parent remarried before the sponsor turned 18, for instance, the parent’s new spouse is considered “a parent,” but otherwise the stepparent will not qualify for an uncapped green card and cannot immigrate immediately with the parent.¹⁸⁴ Similarly, only if a U.S. citizen’s spouse’s children were younger than 18 at the time of the marriage are they also considered the U.S. citizen’s children and able to receive an uncapped green card. An unmarried child younger than 21 of a U.S. citizen with a child of their own (a grandchild of the citizen) would have to leave the child behind to use an uncapped immigrant visa to obtain a green card. But if the child of a U.S. citizen were an adult or married and so were subject to the cap, the minor child would qualify as a dependent, but both would have to wait years for a cap spot.

If the dependent’s spouse or parent is a non-family-sponsored immigrant, they will be subject to the caps on diversity lottery winners (see “Diversity Visa Lottery”) or employment-based immigrants (see “Employment-Based Green Card Caps”).¹⁸⁵ Otherwise, capped family-sponsored immigrants are subject to the family-sponsored cap, which is distributed among five categories (see Table 3).¹⁸⁶ Because each type of family-sponsored immigrant has a different cap, each faces a different wait time for a green card. In addition, immigrants from no single birth country can receive more than 7 percent of the family-sponsored cap.¹⁸⁷ Three-quarters of the green cards under the F‑2A category for spouses and unmarried minor children of permanent residents do not count toward the country limit. The F‑2A category differs from spouse and minor child “dependents” in that the sponsor married or adopted them after receiving permanent residence. The country caps mean that immigrants are effectively in separate lines based on their birth countries within each category, and wait times vary considerably between them. For eligibility for diversity‑, family‑, or employment-based green cards, the only relevant factor is an immigrant’s birthplace, not their citizenship.¹⁸⁸ A person cannot obtain citizenship in another country to avoid the country caps, though they can use the birth country of their spouse if it is more favorable.¹⁸⁹

Table 3 shows the number of backlogged family-sponsored immigrants subject to the caps, along with the number of visas made available by category and country as well as the estimated future wait times if it were possible to remain in line forever. The caps include the spouses and minor children of those relatives (i.e., children-in-law, grandchildren, siblings-in-law, nieces, and nephews). As of November 2021, the family-sponsored capped categories had a combined backlog of 6.9 million applicants.¹⁹⁰ As it shows, F‑2A spouses and unmarried minor children of legal permanent residents are the only immigrants who wait the same length of time regardless of birth country, and they can also expect the shortest wait time (about seven years). While still very long, the wait is shortest because F‑2A immigrants receive by far the largest portion of the family-sponsored green cards (39 percent), and the F‑2A backlog has multiple growth limits since legal permanent residents can apply to become U.S. citizens after three to five years and then sponsor these family members without limit. Furthermore, children who reach age 21 can “age out” of eligibility for the category.

Other family-sponsored immigrants face astoundingly long waits that range from 14 years to 224 years. In fact, using normal mortality tables, it is possible to estimate that nearly 39 percent of new 2022 sponsors will die before cap space opens for a green card. Setting aside F‑2A immigrants, a majority (57 percent) of all family sponsors will die before their relatives receive green cards. The situation is worse for specific countries. Three-quarters of new non-F-2A Filipino immigrants will not immigrate because of the deaths of their sponsors, and Mexicans will effectively be completely shut out.¹⁹¹

The caps and rules also penalize marriage. If a legal permanent resident’s child marries, they are disqualified entirely. The same is true for the dependent children of the immigrant visa recipients (the sponsor’s grandchildren, nieces, and nephews; or the children of refugees, employment-based immigrants, or diversity lottery winners). Minor children of U.S. citizens face a minimum of 32.6 years of additional waiting if they choose to get married because they would have no cap otherwise. For an adult child of a U.S. citizen who gets married, the additional wait is at least 18 years. Marriage penalizes Filipino adult children of U.S. citizens with an additional 48 years of waiting.

The family-sponsored system suffers from two significant unnecessary constraints. First, the types of relatives eligible to sponsor are far more limited than the diversity of family relationships among immigrants. Many immigrants traveling to the U.S.-Mexico border, for instance, come with an aunt, uncle, grandparent, or parents-in-law.¹⁹² Many of these types of relatives do act as financial sponsors by filling in as a joint sponsor for a qualifying relative, but nonetheless the relative in these other family relationships is not permitted to receive legal permanent residence based on their sponsorship alone. This needlessly closes off pathways for immigrants to come legally. Canada, for instance, allows sponsorship of immigrants by grandparents in some circumstances.¹⁹³ The United Kingdom has a path for parents of its citizen children, even if the parent is not married to a UK citizen.¹⁹⁴

Second, the law imposes a wholly unnecessary cap on family sponsorship. Before the 1920s, U.S. law did not have annual caps on immigrants, and while it did have the public charge rule, anyone—including any family member—could act as a sponsor for the immigrant. As Table 3 shows, these arbitrary caps have effectively ended much of the family-sponsored immigration system as a means for future legal immigration. A process that takes longer than the normal working lives of many people is not a valid alternative to illegal immigration. Moreover, Congress last updated the caps in 1990,¹⁹⁵ and in the three decades since, the number of U.S. households has increased from 93 million to 128 million.¹⁹⁶ If the caps remain, they should automatically increase with the number of U.S. households. Congress should also exempt spouses and minor children (dependents) from the annual caps. Dependents use roughly half the cap, and it makes no sense to slash the number of primary applicants just because they happen to be married or have children. This reform alone would have prevented both the employer- and family-sponsored backlogs from growing since 1990.¹⁹⁷

Everyone who is not a refugee, a diversity lottery winner, or a family-sponsored immigrant must obtain a green card under a very restrictive employment-based system. Employment-based immigration is largely impossible for most aspiring immigrants because the categories are so limited, the process is so expensive that few immigrants can qualify, and the caps are far lower than the demand. Figure 13 shows the nine types of employment-based green cards with brief descriptions of each. As it shows, most categories are extremely narrow—mostly reserved for specific, relatively rare, highly skilled occupations; individuals who have projects of national importance; or those who are deemed “extraordinary.” Meanwhile, the government chokes off the one category open to all workers—the basic labor certification—with complex protectionist regulations.

This employment-based system can be divided into two categories: self-sponsored and employer-sponsored. Table 4 shows the number of approved green cards for primary applicants (not their spouses and minor children) under the employment-based categories by type for fiscal year 2019 (the last “normal” pre-pandemic year for which numbers were available at the time of writing). About 22 percent were granted under the employment-based categories that do not require an employer sponsor (“self-sponsored”), and 78 percent were granted under the employer-sponsored categories.¹⁹⁸

Summary: Few people can receive a green card through self-sponsored employment-based categories because

• those cards are limited to extraordinarily successful individuals; and
• self-sponsorship green cards are capped.

The U.S. government provides three employment-based pathways to green cards that do not require an employer sponsor:

• major immigrant investors of between $800,000 and $1.05 million;
• immigrants with “extraordinary ability”; and
• immigrants with advanced degrees or “exceptional ability” whose activities are deemed in the national interest.

These tracks are extremely restrictive. The fourth section of Figure 4 shows their requirements in a flow chart. Figure 14 shows the number of self-sponsored employment-based immigrants by type. Only about 13,452 green cards were authorized under these categories in 2019. Although the self-sponsored system has grown in importance in recent years, it still provided only about 1 percent of all green cards in the United States.

The only way to qualify for an employment-based green card with no imminent job prospect is as a major investor under the EB‑5 category (see Box 6). EB‑5 immigrants must invest in a commercial enterprise that began on or after November 29, 1990.¹⁹⁹ In 2022, Congress raised the required minimum investment amounts from $1 million to $1.05 million. For investments in a “targeted employment area,” it raised them from $500,000 to $800,000.²⁰⁰ A targeted employment area includes a rural area with a population of less than 20,000 or any census tract area with an unemployment rate of at least 150 percent of the national average on its own or when combined with an adjacent area.²⁰¹

EB‑5 immigrants must show that their investments will create at least 10 jobs for U.S. workers within two years,²⁰² and, to avoid losing status after two years, they must have actually created 10 jobs.²⁰³ Applicants may prove job creation by increasing employment by 10 jobs or by preserving 10 jobs from a “troubled business,” defined as one losing 20 percent of its net worth in the prior two years.²⁰⁴

The two-stage nature of the EB‑5 program means that investors have two chances to receive a denial. The subjective assessments of future or past job creation mean that denial rates fluctuate significantly (see Figure 15). In 2021, about 21 percent of EB‑5 petitions were denied, and another 9 percent of investors (and their spouses and children) lost status after the two-year period.²⁰⁵ This means that more than 1 in 5 immigrants trying to invest significantly in the United States is turned down, and 1 in 10 who actually do invest and move to the United States is asked to leave the country after two years.

Future job creation was so difficult to prove under the first iteration of the EB‑5 program that Congress created the Regional Center Program, which allows immigrants to pool their investments under a job creation plan preapproved by the government.²⁰⁶ Unlike other investments, regional center investments also account for “indirect job creation”—that is, jobs created outside the new commercial enterprise itself.²⁰⁷ The regional center took a significant portion of the risk out of the EB‑5 program, and in 2019, about 95 percent of all investors had invested through a regional center.²⁰⁸

The EB‑5 program has an annual cap of 9,940, and demand has exceeded the cap every year since 2015. The investors’ spouses and children younger than 21 count against the cap, and the families of investors typically use about two-thirds of the cap.²⁰⁹ As with the family-sponsored categories, immigrants from no single birth country can receive more than 7 percent of the employment-based green cards, and because the greatest demand historically has come from China, Chinese investors face very long waits. In September 2021, 45,167 Chinese investors and their families were waiting for cap space to become available (see Table 7), and in 2019, before pandemic restrictions temporarily closed visa processing abroad, only 4,327 Chinese received EB‑5 green cards, implying a 10-year wait at that time.²¹⁰

The next category for employment-based immigrants without a sponsor is for immigrants with “extraordinary ability in the sciences, arts, education, business, or athletics” (known as EB-1A).²¹¹ Employers may sponsor or petition for their employees under EB-1A (and the EB‑2 national interest waiver category described below),²¹² but immigrants are not required to have an employer sponsor.²¹³ While no job offer is necessary, the EB-1A immigrant must still prove that they will continue their work in their field in the United States and that this work will substantially benefit the United States in the future.²¹⁴ Future work can be shown by job offers, contracts, affidavits with planned projects, letters from collaborators, or similar evidence.²¹⁵ Substantial benefit is more difficult. Simply playing in the Olympics and wanting to continue to play in the United States is not sufficient.²¹⁶

Applicants must demonstrate that they are part of a “small percentage who have risen to the very top of the field of endeavor” (see Box 7).²¹⁷ Extraordinary ability must be demonstrated by “sustained national or international acclaim” and “recognized in the field through extensive documentation.”²¹⁸ “Sustained” clarifies that just being at the top of a field at one time is not sufficient to obtain an EB-1A green card.²¹⁹ Similarly, the government takes a narrow view of “field” such that, for example, an Olympic gold medalist gymnast would not qualify if coming to teach or coach gymnastics.²²⁰

Extraordinary ability may be proved by possessing a one-time internationally recognized achievement such as a Nobel Prize, Pulitzer Prize, Oscar, or Olympic medal in the field or by meeting at least 3 of 10 specific criteria from a list that the government agrees shows extraordinary ability (e.g., scientific, scholarly, artistic, athletic, or business-related contributions of major significance).²²¹ Applicants may only use “comparable evidence” not from the list when the profession is outside the plain text of the regulations.

However, even if the applicant meets these requirements, the government will still subjectively reassess the application in its entirety to determine if the immigrant truly meets the “high level of expertise required” to be among the “small percentage” at the top of a field.²²² The extremely high requirements and the subjective analysis applied to them have yielded a high denial rate: 44 percent in 2019 (see Figure 16).²²³ The increase in recent years is partly because the subjective standards allow for new administrations to quickly change practices. The backlogged employer-sponsored system may also drive more immigrants to apply for the self-sponsored green card to avoid the lengthy waits there.

The EB-1A category is subject to both the overall category limit for EB‑1 (which includes employer-sponsored EB-1B and EB-1C immigrants described below) and the EB‑1 per-country limit. Both must have space available for the immigrant to receive a green card. As of February 2022, no countries had reached their country caps, and the overall cap has not been reached either.²²⁴ Even if the cap were filled, an EB-1A immigrant with an agent or employer to sponsor them can qualify for an O‑1 extraordinary ability work visa.²²⁵ The O‑1 visa has no cap and, assuming the immigrant still qualifies, can be renewed until EB‑1 green card cap space is available—which has never taken more than a couple of years for any country—and then the immigrant can transition to permanent residence.²²⁶ Immigrants in a variety of fields can obtain an EB-1A green card. Former first lady Melania Trump, for instance, qualified under EB-1A as a prominent fashion model.²²⁷ Its restrictive criteria, however, meant that just 4,053 immigrants obtained permanent residence using the extraordinary ability category in 2019.²²⁸

The final category of self-sponsored immigrants is for those eligible for an EB‑2 national interest waiver. EB‑2 immigrants must have “exceptional ability,” advanced degrees, or bachelor’s degrees plus five years of “progressive” experience during which the immigrant’s role grew over time. Applicants can prove exceptional ability by meeting three of seven criteria shown in Box 8.²²⁹ EB‑2 immigrants can receive a green card without a job offer when it is in the “national interest.”²³⁰ Proving national interest requires meeting a three-pronged test. First, the immigrant’s proposed work must have “both substantial merit and national importance.”²³¹ Second, the immigrant must be “well positioned” to advance this work. Third, “it would be beneficial to the United States” to waive the usual employer-sponsored requirements.

Each of the three prongs is highly subjective, and the government takes a narrow view of these concepts. In 2018, for instance, it denied a clinical laboratory scientist working with highly contagious diseases who was sometimes the only qualified staff member to prepare the laboratory for patient testing because the project was not of “national importance.”²³²

As a consequence of the high, subjective standard—which has undergone abrupt changes in interpretation—national interest waiver applications have seen wild fluctuations in their denial rate, reaching an exceptionally high rate of 19 percent in 2020 (see Figure 17).²³³ Only 6,114 national interest waivers were approved in the entire fiscal year of 2019, excluding 495 for physicians who may use a different process (see “Physicians and Physician National Interest Waivers”).²³⁴ Even if the national interest waiver petition is approved, the immigrant still needs cap space to be available under the annual limit for both the EB‑2 category and for the immigrant’s birth country to obtain a green card. As has been the case for nearly two decades, no cap space is immediately available for new EB‑2 applicants from India and China, and national interest waiver applicants must wait in line with other EB‑2 applicants (see “Employment-Based Green Card Caps”).²³⁵

EB‑2 national interest waiver applicants could qualify for temporary work visas to allow them to work while waiting for green cards to become available under the EB‑2 category and country limits. Many EB‑2 national interest waiver applicants can qualify for an O‑1 extraordinary ability visa. Many others must obtain an H‑1B visa, which means that most end up being subjected to all the employer-sponsored H‑1B requirements, including the prevailing wage rule (see “Employer-Sponsored Immigration with the Prevailing Wage”). When no green card cap space is available, non-Indian EB‑2 applicants can decide to work in these statuses and eventually receive a green card, but the number of EB‑2 applicants from India is so great that no new Indian applicant will likely ever qualify for an EB‑2 green card without a change in law (see Table 7).

America’s self-sponsored employment-based immigration tracks are intentionally too narrow for anyone but a tiny elite to access, and even then, these immigrants still face numerical caps. Congress should remove caps on all employment-based immigration, but particularly for these elite few. The fact that very few immigrants can initiate the green card process makes legal immigration subject to the willingness of employers to initiate it. It also makes it much more difficult for entrepreneurs to obtain permanent residence. A complementary model would allow any immigrant to initiate the process, regardless of the requirements. Employees, for instance, could provide independent data or analysis showing that their employment would have no “adverse effect” rather than relying solely on an employer-conducted labor certification (see “Permanent Labor Certification”).

Another reform would simply expand on the national interest waiver or extraordinary ability tracks to include other measures of contributions to the country. Some countries use this method by awarding “points” for certain qualifications and then issuing permanent residence to those above a given threshold. This could include level of education, the existence of a job or job offer, the applicant’s wage, entrepreneurship, the length of U.S. residence or employment, age, language ability, family ties, or other factors. This system would be easier to administer, would result in fewer denials, and would help facilitate the immigration of talented people who will contribute to the United States.

Summary: Few people can receive a green card through employer-sponsored categories because

• they either are limited to very narrow occupational categories or are too costly and time-consuming for most employers to manage (or both); and
• employer-sponsored green cards have a low cap.

Employer-sponsored immigration is the final and most complex option for legal immigrants. Just 1 in 1,500 new hires in the United States are made through the employer-sponsored green card system (see Figure 18). Very few immigrants can qualify for employer-sponsored immigration because the law either limits the number of applicants to extremely narrow classifications or imposes so many costs that few employers will even participate in the legal process. All employer-sponsored immigrants must meet additional baseline requirements (see Box 9) beyond the baseline requirements for all immigrants (see Box 2) and for nonrefugee immigrants (see Box 4). The final section of Figure 4 provides the employer-sponsored rules in a flow chart.

The threshold requirement for employer-sponsored immigration is that the immigrant has a job offer from an employer willing to sponsor them, which requires paying a fee of at least $700 to petition for them to receive permanent residence in the United States.²³⁶ In 2023, the administration was working to finalize a new regulation to increase this fee to $1,315.²³⁷ Religious workers have a lower fee of $435 (that the administration is planning to increase only to $515 in 2023),²³⁸ and they may submit the petition and pay the fee on their own if their employer is unwilling to do so. If it is infeasible or undesirable to wait an additional year for regular processing (see Table 6), an employer may pay a “premium processing” fee of $2,500 for a 15-day turnaround time.²³⁹ This fast-track option is currently unavailable for religious workers.²⁴⁰ Multinational executives or managers and national interest waiver cases are only guaranteed a 45-day turnaround.²⁴¹

Only year-round, nontemporary jobs offering full-time employment of at least 35 hours per week qualify if they are available to the applicants within a short period of their approval for permanent residence.²⁴² Seasonal or part-time jobs and those with a definite end date do not qualify for permanent residence. Under the public charge rule, employer-sponsored immigrants must prove their ability to support their family at the poverty line.²⁴³ The agencies rarely deny employer-sponsored immigrants for this reason.²⁴⁴ The poverty line for a single person in the continental United States in 2021 ($12,880) was less than the income from a full-time job at the federal minimum wage, so the public charge rule could only ever come up for lower-paid, employer-sponsored immigrants with larger families.

All employers must show net income or assets capable of covering the wage that they have offered,²⁴⁵ and immigrants must show that they meet the employer’s job experience requirements, usually through letters from prior employers. These letters can sometimes be challenging to obtain from foreign, bankrupt, or disgruntled former employers, and sometimes companies just have a blanket policy against providing detailed information on their positions.²⁴⁶ Employers generally have no incentive to produce detailed letters like these for former employees, so this requirement can severely delay the process. In such cases, workers will need to provide alternative evidence, such as signed affidavits from former coworkers.²⁴⁷

Even if the immigrant has a valid job offer and meets all the other requirements to immigrate, they cannot qualify for employer-sponsored immigration unless they fall into a specific employer-sponsored category. Figure 19 shows the number of employer-sponsored green cards by type. There are six broad types: EB‑4 religious workers, EB-1C executives and managers, EB-1B outstanding professors and researchers, EB‑2 national interest waiver physicians, Schedule A shortage workers (primarily nurses and physical therapists), and workers with approved labor certifications. Only the final category is theoretically open to all workers. There were about 46,916 employer-sponsored immigrants in 2019 (again, not including their spouses and children who qualify through their family relationship).

Table 5 summarizes the major requirements for the employer-sponsored categories, which will be explained in more detail below. The last three categories, which are more onerous, usually require a special minimum wage or wage floor known as the “prevailing wage,” while the first three streamlined options—which are described next—do not.

Religious workers have the easiest employer-sponsored path to green cards through the EB‑4 category for “special immigrants,” which includes various other immigrants not covered by this paper, such as abandoned children and certain immigrants with U.S. government connections.²⁴⁸ Congress has prioritized religious workers by not subjecting them to several other burdensome employer-sponsored requirements, including the prevailing wage and the labor certification, which are used to determine whether qualified U.S. workers are available. In fact, unlike all other situations where an employer’s job offer is required, religious workers are even able to initiate the process for a green card on their own without the employer’s direct involvement, beyond supplying the worker with proof of the job offer and other qualifications.²⁴⁹ Nonetheless, most do start with direct employer sponsorship because most religious workers first obtain an R‑1 temporary work visa, which requires an employer petition but has faster processing times. The religious worker path is easier than others, but very few individuals are actually eligible.

Box 10 summarizes the EB‑4 religious worker requirements. Religious workers include ministers, nuns, monks, sisters, missionaries, counselors, translators, religious instructors, cantors, and other pastoral care providers who are sponsored by a bona fide nonprofit religious organization in the United States or an organization affiliated with a religious denomination in the United States. As long as the applicant has been employed for two years in the denomination and is offered a compensated position, they are immediately eligible for green cards if their EB‑4 cap is unfilled.²⁵⁰

Religious workers are subject to the EB‑4 cap of 9,940 for “special immigrants.”²⁵¹ New EB‑4 applicants from Mexico, Guatemala, Honduras, or El Salvador, however, are not currently eligible to receive EB‑4 green cards, because these countries’ caps are full.²⁵² As of May 2022, the government was only processing EB‑4 applicants who applied in April 2020 for Mexicans and May 2017 for those from the other three countries.²⁵³ Backlogged EB‑4 immigrants can work around the cap by obtaining an R‑1 religious worker temporary work visa for themselves and their families.²⁵⁴ They can pay the $190 R‑1 nonimmigrant visa fee, and the workers first enter as R‑1 temporary workers before then paying $1,225 to adjust their status to permanent residence in the United States when a cap number is available.²⁵⁵ These fees replace the immigrant visa fee and immigrant fee described above, but they are still about $850 more than the fee for directly processing abroad. If these waits become too much longer, however, immigrants from these countries could face problems because the R‑1 visa has a five-year limit, and they would be required to return home for at least a year.²⁵⁶ Just 443 religious workers became permanent residents in 2019—0.5 percent of all religious workers in the United States.²⁵⁷

The next simplest path for an employer-sponsored green card is to qualify under the EB-1B category for outstanding professors and researchers.²⁵⁸ Box 11 summarizes the EB-1B requirements. Outstanding professors under the EB-1B category need a job offer from a university, other institution of higher education, or private employer with at least three full-time researchers, and the applicants must be pursuing tenure or a comparable research position and have at least three years of experience.²⁵⁹

They must also prove that they have obtained “international recognition for outstanding achievements in an academic field.”²⁶⁰ Proof must include two of six measures of outstanding achievement (e.g., “receipt of major prizes or awards for outstanding achievement”). Even if they have the required evidence, the government will subjectively reassess the application in its entirety to determine whether they are truly outstanding.²⁶¹ EB-1B immigrants are subject to the EB‑1 cap, which also includes EB-1A and EB-1C categories described elsewhere, but given the restrictive criteria for these categories, the cap was unfilled for all countries as of November 2022. Just 1,982 professors and researchers obtained green cards through this path in 2019, 0.1 percent of all postsecondary teachers in the United States.²⁶²

The final employer-sponsored option that does not require the “prevailing wage” is for multinational executives or managers (EB-1C). These immigrants must be employed for at least one of the past three years outside the United States by the petitioning employer in a managerial or executive capacity,²⁶³ and the employer must be doing business in both countries.²⁶⁴ Box 12 summarizes the EB-1C requirements. While the statute would seem to permit an employee of a multinational company to move to the United States to open a new office for the first time here, the government has imposed a requirement through regulation that the U.S. business must have been operating for at least one year.²⁶⁵ This requirement forces these entrepreneurial immigrants to first obtain an L‑1 temporary work visa (see “Temporary Work Visas”) to open the new office and use the EB-1C category later to adjust to permanent residence in the country.

Obtaining permanent status in exchange for attempting to start a new office in the United States would encourage new business creation and spur economic growth, yet the government frets that some new enterprises would fail and that the immigrants would still receive permanent status. Similarly, the government prohibits immigrants who are sole proprietors from using this category to obtain a green card for themselves. It merely states that this would constitute an impermissible “self-petition.”²⁶⁶

One big restriction on the EB-1C category is how immigration law defines a manager. Rather than adhering to what the government calls the “common understanding,” the legal definition of manager does not include all workers who manage or supervise other workers.²⁶⁷ Instead, managers must also exercise day-to-day control over the entire organization or a division, component, or function of the organization, and they must either manage an “essential function” of the business or manage “professional” workers in jobs requiring college degrees, not merely lesser-skilled workers.²⁶⁸ This criterion eliminates the ability of business managers in many industries from using the EB-1C executive or manager category, even if their businesses have an international presence. Just 9,639 executives and managers obtained an EB-1C green card in 2019, 0.1 percent of the nearly 9 million managers and executives in the United States.²⁶⁹

If an employer-sponsored immigrant is not a religious worker, a multinational executive or manager, or an outstanding professor or researcher,²⁷⁰ they must have a job that the government determines offers the “prevailing wage.”²⁷¹ The prevailing wage is supposed to represent the wage paid to similar employees in the same occupation in the same area at a comparable skill level as determined by the government, and its ostensible purpose is to prevent adverse effects on the wages of U.S. workers. But since permanent residents are economic free agents, they receive the market wage for their labor and create an equivalent demand for labor elsewhere, so this requirement only further restricts and excludes legal immigrants for no legitimate reason. The prevailing wage requirement bans any immigrant who has a wage offer below the prevailing wage, excluding many job opportunities from forming a basis for a green card application.

The first difficulty with the prevailing wage is determining the type of job. Except for wages governed by a collective bargaining agreement (union wage), the prevailing wage is almost always based on an annual survey of wages from the Bureau of Labor Statistics’ Occupational Employment and Wage Statistics (OEWS) program.²⁷² Employers must select from a list of 822 occupational categories with descriptions that the government culled down from a much larger list of nearly 13,000 job descriptions by clumping together related categories.²⁷³ This can mean that specific jobs do not fit neatly into the government’s descriptions, leading to erroneous wage requirements. Even with an attorney’s help, it is often difficult for employers to precisely place their job within a single category, and in 2021, the government rejected an employer’s selected job classification about 24 percent of the time.²⁷⁴ If the job combines multiple categories, the required wage is equal to the highest prevailing wage of any job category in which the worker may be employed, regardless of the percentage of time in each category.²⁷⁵ This can inflate wages beyond the usual level wherever workers work in multiple positions. For instance, one task for a “construction laborer” (median wage: $37,770) is pouring cement, but he becomes a “cement mason” (median wage: $47,340) if he smooths the poured cement.²⁷⁶

Even more contentious is how the government determines the worker’s skill level.²⁷⁷ Because the OEWS program does not collect any information on job requirements, the government somewhat arbitrarily divides the reported wages for an occupation into four levels at roughly the 17th, 33rd, 50th, and 67th percentiles, with the lowest level corresponding to the entry-level wage. Because the lowest prevailing wage level is the 17th percentile, this means that whenever the prevailing wage level is required, about 17 percent of jobs in the United States are automatically ineligible for employer sponsorship, including those for which lesser-skilled immigrants are most in demand.

Another problem arises when deciding which job requirements match which wage levels. The basic framework is that the government will require a higher wage whenever it deems the job requirements to exceed the minimums “normally” required in the occupation. The government uses four job requirement metrics: years of experience or training, level of education, supervisory duties, and other skills, licenses, or certificates.²⁷⁸ The wage will increase one level for each category in which the job requirements exceed the low end of the common range for the skill category. For example, if jobs in the occupational category normally require one to two years of experience or training and the employer requires two years, the wage will be increased from level one (17th percentile) to level two (34th percentile). If the employer requires three years, the wage level will increase again to level three (the 50th percentile). A similar process is applied for other job requirements.

This framework can cause problems for several reasons. The government has not empirically analyzed its methodology to see if it produces wages that correspond to the actual wages paid to those types of workers.²⁷⁹ It relies on often outdated sources for normal minimum job requirements that were developed to help educate workers about job opportunities (not for the prevailing wage²⁸⁰), and it deems certain job duties, such as travel, to be restrictive requirements that could just as easily be deemed to be job perks for some applicants.²⁸¹ Each wage level can be significant. For accountants in New York City, for instance, the difference between each level is more than $20,000, but there is no evidence that accounting jobs requiring workers to travel pay $20,000 more than ones that do not.²⁸² Even for construction workers, the difference is nearly $15,000 (see Figure 20). The result is that the prevailing wage is inflated higher than the wages normally required for the job, pricing many immigrants out of the employer-sponsored legal immigration pathway.

The rule poses numerous other difficulties for employers and immigrants. For one, the wage is set using base salary only,²⁸³ so it excludes any nonguaranteed wages, such as bonus or incentive-based compensation. Because the OEWS survey includes all pay, this rule further skews the accuracy of the prevailing wage while also making it more difficult for employers to use many common compensation strategies that rely on incentives.²⁸⁴ Finally, the data on which the government relies ignore differences in wages between small and large businesses as well as between industries, with the exception of universities and research organizations.²⁸⁵

Even if they offer the prevailing wage, employers wishing to sponsor a foreign worker must still advertise the job to U.S. workers and obtain a permanent labor certification in a complicated and lengthy process that usually requires significant attorney involvement and legal costs (see the permanent labor certification section below).²⁸⁶ Besides the categories previously described, the regulations for employer-sponsored immigrants permit just two exceptions to this general rule: EB‑2 physician national interest waivers and Schedule A shortage occupation designations.

The first option is the EB‑2 physician national interest waiver, which is very different from the self-sponsored national interest waiver described earlier. Box 13 summarizes the physician national interest waiver requirements. All physicians immigrating to the United States need to be competent in oral and written English,²⁸⁷ which they must demonstrate by having passed the U.S. Medical Licensing Examination parts I and II.²⁸⁸ This is an onerous requirement to ask of a practicing physician.

The most important requirement—again applicable to all physicians whether they are seeking a national interest waiver or not—is possessing a license or authorization to practice in the state of intended employment. Every state licensing law requires immigrant physicians to have graduated from a medical school recognized by the Educational Commission for Foreign Medical Graduates and, importantly, completed a year or more of postgraduate training—often referred to as residency—at an accredited program in the United States.²⁸⁹ The only exception to U.S.-based postgraduate training is if they graduated from a non‑U.S. medical school accredited by the Association of American Medical Colleges, which only accredits foreign schools in Canada.²⁹⁰

This means that virtually all foreign graduates of non-Canadian medical schools cannot immigrate to be employed as a nontrainee physician, no matter how experienced they are. They essentially have to restart their careers. For non-Canadian applicants, therefore, an offer for accredited medical postgraduate training is a prerequisite for an EB‑2 physician national interest waiver, and only a defined number of training slots become available each year.²⁹¹ This means that an immigrant physician may often be unable to obtain a residency in the specialty that they practiced abroad.²⁹²

The government will only issue green cards based on permanent jobs, not temporary jobs like postgraduate training positions. Two temporary work visas can be used for postgraduate medical training, the J‑1 and H‑1B,²⁹³ but the J‑1 visa requires applicants to have a foreign residence that they have no present intent of abandoning and that they currently intend to depart at the end of their program.²⁹⁴ Although it does not require applicants to show that their intention is unlikely to change, judging “present intent” is highly subjective. If the physician was completely open about their desire to use the J‑1 visa to obtain employer sponsorship for a green card, it is possible to be denied.²⁹⁵ Regardless, work in J‑1 status cannot be used to obtain a physician national interest waiver.²⁹⁶

Thus, the H‑1B is the only fully legal option for physicians in postgraduate training who are explicitly requesting a temporary visa to obtain a green card and the only option at all for physicians abroad seeking a national interest waiver. ²⁹⁷ But obtaining an H‑1B visa presents its own problems. Although the J‑1 is far more restrictive for the physician,²⁹⁸ the H‑1B is more restrictive for the employer. Employers are less willing to hire trainees on an H‑1B visa since the employer must cover all the H‑1B fees,²⁹⁹ and the H‑1B is capped for clinical practices outside of universities and related nonprofit entities.³⁰⁰

In addition to navigating all of this, a physician who wants a physician national interest waiver must find work in a clinical practice and provide primary or specialty care for five years in a medically underserved area or at a Veterans Affairs facility.³⁰¹ While jobs at a Veterans Affairs facility require federal endorsement, the federal government will otherwise only credit time spent working in an underserved area if the immigrant obtains a letter of need from a state department of health stating that a waiver would be in the public interest. Each state sets unique requirements for obtaining a recommendation letter.³⁰² Some states require employers to recruit U.S. workers for the position, undermining the streamlined purpose of the waiver program,³⁰³ and others require the physician to already be working in a temporary work visa status in the state.³⁰⁴ Some states also refuse to credit time spent in postgraduate training toward the five-year period.³⁰⁵

The physician national interest waiver process to obtain a green card is not technically employer-sponsored. Workers can file the waiver without an employer’s petition, but even qualifying physicians still need to obtain a temporary work visa on which to enter the country to begin the required five-year working period,³⁰⁶ and the only visas that can be used for a national interest waiver are the employer-sponsored O‑1 and H‑1B visas.³⁰⁷ The physician national interest waiver also technically does not require the prevailing wage, but since the H‑1B visa does, nearly all applicants end up subject to it.³⁰⁸ While the O‑1 does not require any particular wage, some states will only issue letters for H‑1B workers,³⁰⁹ and the O‑1 is unobtainable for all ordinary physicians and trainees because it requires “extraordinary ability” based on “sustained national or international acclaim.”³¹⁰

The H‑1B cap imposes another significant restriction on physician national interest waiver applicants because many qualified physicians still cannot immigrate. Even if a physician has received a physician national interest waiver and obtained an H‑1B visa, green cards must still be available under the annual cap on green cards (see “Employment-Based Green Card Caps”) for the immigrant’s country of birth and the immigrant’s broad employment-based category (EB‑2 for all immigrants with exceptional ability, advanced degrees, or the equivalent). These caps mean that most new Indian physician applicants face a virtual lifetime of waiting. In 2019, there were just 528 national interest waivers approved for physicians—0.07 percent of all physicians in the United States.³¹¹

The last option to avoid the costly labor certification process is classification as a Schedule A “shortage” occupation—that is, one that the government preemptively precertifies as inherently in short supply.³¹² There are two types of Schedule A: Group I and Group II. Box 14 shows the requirements for these immigrants. For the past three decades, the government has determined only two occupations that have “shortages” warranting Group I precertification for a green card: physical therapists and registered nurses. For immigrants in one of these two occupations sponsored by an employer, a green card may be immediately available unless they were born in India or China, because the caps for those countries are currently full.³¹³

Because most employers cannot afford to keep a job open for years waiting for cap space to become available, nearly all nurses and physical therapists from India and China need a temporary work visa to enter and wait for a green card. The problem is that to qualify for an H‑1B temporary work visa, workers must have offers of employment in jobs normally requiring a college degree.³¹⁴ Physical therapists can meet this requirement,³¹⁵ but the government claims (debatably) that registered nurses do not require a four-year bachelor’s degree unless they are specialists.³¹⁶ Thus, despite qualifying under a shortage occupational category, most registered nurses from the world’s two most populous countries cannot legally immigrate through employer sponsorship.

Schedule A, Group II is for immigrants with “exceptional ability” in the sciences or arts. Science or art is defined as “any field of knowledge and/​or skill with respect to which colleges and universities commonly offer specialized courses leading to a degree in the knowledge and/​or skill.”³¹⁷ By this definition, exceptional ability in business or education qualifies for a Schedule A, Group II.³¹⁸ However, Group II applicants must prove widespread acclaim and international recognition by recognized experts in the field and document at least two of seven other measures of exceptional ability (e.g., internationally recognized awards).³¹⁹ Precise statistics are not available. However, because it requires the prevailing wage and an employer sponsor, this category has seen little use because the similar self-sponsored categories for EB‑2 national interest waivers and EB-1A extraordinary ability may often be better options for immigrants who could qualify for the Schedule A category.³²⁰ Even if they meet this high and subjective metric, they still need to have a green card number available under the EB‑2 or EB‑3 country limit.³²¹ The government has not published statistics on the exact number of Schedule A immigrants, but in 2019, 5,677 registered nurses and physical therapists received prevailing wage determinations—the first stage in the process—0.2 percent of all nurses and physical therapists.³²²

If an employer-sponsored immigrant is required to be paid the prevailing wage but is ineligible for a national interest waiver or a Schedule A precertification, they must have their employer obtain an individual permanent labor certification.³²³ The purpose of the permanent labor certification is to deny a green card to an employer-sponsored immigrant if any U.S. worker is minimally qualified, able, willing, and available in the area to perform the job. In other words, the labor certification is government-mandated discrimination against foreign workers seeking legal employment. The labor certification creates a perverse incentive for employers to hire illegal workers both because hiring illegally can be more efficient and because it can be difficult to determine work eligibility. Although the regulations define “U.S. worker” to exclude illegal foreign workers, employers must accept documents that “reasonably appear to be genuine.”³²⁴ Given the widespread availability of fraudulent or borrowed documents, the labor certification prioritizes foreign workers with fake documents over workers trying to immigrate legally.³²⁵

Unlike the other employer-sponsored categories, the labor certification is still theoretically open to any job and any worker. Nonetheless, the number of certifications is far below the number of immigrants seeking U.S. jobs because most employers will not undertake the difficult process; workers cannot initiate the process on their own; and they cannot cover any of the employer’s costs of obtaining a certification.³²⁶ The rules are intentionally biased against those immigrants for whom employers are most likely to want to file a labor certification. If the immigrant is an owner, key manager, employee in a small business, or relative of an owner, officer, board member, or director, the government assumes that, without substantial evidence to the contrary, the job opportunity is not bona fide (i.e., open and available to U.S. workers).³²⁷

For instance, the government denied one founder because “it is likely the corporation would cease to exist” without him.³²⁸ Entrepreneurs effectively must prove that they are not indispensable to the businesses. Owners cannot avoid problems simply by resigning as a member of the corporation and limiting their roles to management.³²⁹ The government will also deny managers who never owned the business if they supervise the person doing the recruitment.³³⁰ Although the government will often approve relatives of the owner, it is still more likely to deny them. For instance, it rejected a sister-in-law of a small business owner, citing the fact that she lived with the owner.³³¹ Sole proprietors are always barred.³³²

Although the labor certification requires recruitment, few employers use the process to find a worker to fill an open position. Employers have usually already found the worker they want through their normal process and are going through the labor certification because it is required for the worker to receive permanent employment authorization. Indeed, as described below, immigrants subject to the labor certification requirement typically start working for the employer under a temporary work visa before the labor certification process even begins.³³³ The government calls the labor certification a “test of the labor market,”³³⁴ and the test subjects are U.S. workers. The test is effectively an experiment performed on job seekers to prove that if the employer took reasonable steps, no minimally qualified worker would be available, able, or willing to do the job. Employers are not required to hire any applicant,³³⁵ but if a minimally qualified U.S. worker applies, the government will deny the application, and the employer must wait six months to try again.³³⁶ Employers cannot honestly tell job seekers that the job is already filled because that would disrupt the experiment.³³⁷

As summarized in Box 15, the labor certification requires employers (except for colleges hiring instructors) to post the job for 30 days with a state job bank, interview applicants referred from the job bank, notify existing workers about the job, take out two ads in Sunday print newspapers, and recruit in at least 3 of 10 other specified ways if it is a job typically requiring a bachelor’s degree or higher.³³⁸ The newspaper advertisements commonly cost between $500 and $3,000, depending on the amount of detail used in the ad and the size of the marketplace.³³⁹ The state agencies referring U.S. workers to these jobs have no obligation to screen out illegal immigrant workers, placing that obligation on the employer, and some applicants referred by state agencies are only applying as a condition of unemployment insurance and have no genuine interest in the position.³⁴⁰ Because it is labor intensive, interviewing U.S. applicants can also be costly. Interviewing must be conducted if the résumé meets what the government deems to be the “basic” job requirements for experience and education, even if they are actually not qualified for the position overall.³⁴¹

Although the employers are never required to hire anyone, the government will deny a labor certification if a U.S. applicant is minimally qualified, even if the foreign worker is far more qualified. The only exception to this rule is for college instructors who can be hired if they are the most qualified candidate, and colleges can also recruit instructors using their normal competitive recruitment efforts.³⁴² Employers cannot simply set all their own job standards, either. The government decides whether the standards are “normal” for the occupation or, if not, justified by a legitimate business necessity.³⁴³ This means that the labor certification is biased against employers hiring the most talented foreign workers with unusual skill sets.³⁴⁴

Even if the employer can justify the higher standard as a business necessity, the prevailing wage rules (see “Employer-Sponsored Immigration with the Prevailing Wage”) dictate a wage level increase for requirements not deemed “normal,” so employers will incur a higher cost either way. U.S. applicants who fail to meet even these reduced requirements can still trigger a denial if the government believes that they could meet them with a “reasonable period” of on-the-job training.³⁴⁵ If the employer fails to list even common-sense requirements in the application, such as not having negative reviews from past employers, and rejects U.S. workers for those reasons, the certification may be denied.³⁴⁶ To keep the job open for a foreign worker, the employer cannot find a completely new role for a U.S. worker, even an objectively better one, unless they can prove the role existed before starting the labor certification process.³⁴⁷

Labor certification adds substantial cost, time, and risk to the process of hiring a worker. Virtually all employers need immigration counsel to navigate the complex labor certification. A leading reference book on the subject is nearly 600 pages.³⁴⁸ Often only subject-matter experts can even learn about the rules. Officials revealed their interpretation of how much experience is “normal” for each occupation only in verbal comments at a conference for attorneys in 2002.³⁴⁹ Given this type of rulemaking, the government is prone to abrupt changes in how it applies these rules. For many years, employers never needed to list required licenses under the application form’s section for an immigrant’s qualifications, but without notice the government started denying applications that failed to do so for several years before finally confirming the change in statements to attorneys at a conference in 2014.³⁵⁰ Attorney costs are a significant constraint on applying for permanent labor certification, and they can vary widely depending on the attorney, complexity of the case, and location. Several sources indicate that fees of $2,000–$6,000 are common, and employers often pay much more for a complicated case.³⁵¹

The time that a labor certification takes is as important as its monetary costs. The employer-sponsored green card labor certification filing process is a multistep labyrinth, which—without getting into the details of each step—is depicted in Figure 21. The labor certification part of the process by itself currently adds an average of roughly a year and a half to the immigration process.³⁵² Before a labor certification can be filed, the employer and employee must gather all the required information about the position and the employee’s history. The attorney must take time to validate this information because small errors can derail the entire application. For instance, failing to put the exact day a prior job started and ended as opposed to just the month can lead to a denial.³⁵³ Collecting and validating information—including letters from former employers—by itself can take several weeks to several months.³⁵⁴

Once the attorney has the necessary information, the labor certification has three stages. First, the government verifies the occupational classification and determines the prevailing wage (average of 145 days in 2021).³⁵⁵ Second, the employer follows the recruitment steps (average of 160 days in 2021).³⁵⁶ Third, the government adjudicates the labor certification application (average of 231 days in 2021)—for a total of 536 days (Table 6). Some employers can complete this final step in less time, while others—such as smaller employers or those with lesser-skilled jobs—take much longer. For instance, the government took 57 additional days to adjudicate applications for employers with five or fewer employees in 2021 and 77 additional days for jobs not requiring any formal education.

Moreover, this time comes in addition to a combined wait of one to two years for the rest of the employer‐​sponsored green card processing. With several months of preparation time, a labor certification green card will usually take two and a half years and sometimes much longer. All this processing time excludes the wait for a cap spot to become available (typically only for Indian and Chinese applicants).³⁵⁷ This compares to just two months to fill a job under most businesses’ normal hiring process.³⁵⁸ Figure 22 shows how the wait times have actually grown significantly longer in recent years.

The labor certification is only valuable to employers if the expected benefit—profit from the employee’s future work multiplied by expected days of work—exceeds the costs.³⁵⁹ But the expected days of work are highly uncertain because employees may leave their employers immediately after they receive a green card or in some cases not work for them at all.³⁶⁰ In fact, the labor certification costs for employers grow as the expected benefits fall because labor certification applications for jobs without any educational requirements are four times more likely to be denied.³⁶¹ With fewer skills, however, less is produced for employers, so the benefits of filing an application are fewer. Lower-paid jobs also have higher turnover, so not only is the expected profit per day from the worker lower but the expected days of work are also lower.³⁶²

The regulations exacerbate the risk because employers must name the specific worker who will fill the job when they apply for a labor certification, and the rules prohibit substituting a different worker if the original worker becomes unavailable.³⁶³ If the worker abandons the process, becomes sick, or takes another job, the employer cannot use the fact that no U.S. worker responded to the advertising to hire a different worker. If they end up having no need for the certification following the long process, they also cannot convey it to another company.³⁶⁴ In the same way, the immigrant cannot transfer the certification to another immigrant.³⁶⁵

If the employer rescinds the job offer before the worker receives a green card, the immigrant cannot use the approved labor certification to find a job elsewhere if they are applying from abroad. Immigrant workers already inside the United States working on a temporary work visa can use their approved labor certification to switch jobs, but only at the very end of the process—after the certification is approved, the employer petition is approved, a green card cap number becomes available, and the worker’s green card application has been pending for more than 180 days.³⁶⁶ The inability to substitute or exchange the labor certification greatly undermines its value for both employers and employees.

For jobs offering wages below a certain threshold, it becomes nearly impossible to use the labor certification process to hire a foreign worker directly from abroad because the cost exceeds the expected benefit of filling the job.³⁶⁷ Consider a simplified hypothetical example for two workers: a food server with wages at about the 25th percentile for all jobs in the United States ($29,500) and an investment analyst with wages at about the 90th percentile ($103,020).³⁶⁸ Median job tenure for food service is 1.9 years, and finance is 4.7 years.³⁶⁹ Assuming something like an annual rate of return on their investments of 10 percent, the employers might expect to make $5,871 during the server’s tenure and $58,370 during the analyst’s.³⁷⁰ If labor certification costs are more than $5,871—as they commonly are—it would not be profitable to hire the server unless the worker is required to stay longer or the cost of filing is reduced.³⁷¹

Regardless of the type of worker, however, employers are generally unwilling to wait for years while going through this process for a specific worker who may or may not arrive and who may or may not leave them if they do. However, they may still be willing to hire the foreign worker if they can obtain a temporary work visa comparatively quickly to allow the worker to start the job and work during the green card process. For example, the H‑1B visa enables employers that win the H‑1B lottery (see temporary work visas below) to hire certain skilled foreign workers in about seven months and temporarily bypass the more burdensome and time-consuming labor certification until the hire is complete.³⁷²

The labor certification does not depend on a temporary visa, but temporary work visas enable the employer to follow the lengthy process while the worker is already employed by them. Because sponsoring an H‑1B worker is highly regulated and H‑1B workers cannot easily find new sponsors, the employer increases the odds that the worker will stay with them during the permanent residence process. Thus, temporary work visas decrease risk while increasing expected days worked and so increase the benefit of sponsoring the worker. It is no surprise, then, that in 2019, 93 percent of approved labor certifications were for immigrants already in the United States—a percentage relatively constant in recent years (see Figure 23).³⁷³ A significant portion of the remaining 7 percent are for immigrants en route to the United States on a temporary work visa.³⁷⁴ For the rest, consulates abroad deny a very significant share of immigrants with approved labor certifications (or Schedule A precertifications) who are trying to come without a temporary work visa because the consular official claims to have found a problem with their job offer or does not believe they intend to work that particular job.³⁷⁵

Given the high denial rate and limited employer willingness to undertake the labor certification, a direct-to-green-card labor certification job is extremely rare.³⁷⁶ The unusual exceptions are generally for cases in which the employers have a particularly unique interest in bringing an immigrant to the United States, such as a family or personal connection (which—as noted earlier—also makes it more difficult for them to be approved).³⁷⁷ Everyone else subject to the permanent labor certification, outside the country, and ineligible for a temporary work visa effectively cannot immigrate permanently to the United States through employer sponsorship. With very rare exceptions, this includes everyone without a four-year bachelor’s degree because there is no temporary work visa for noncollege graduates seeking to immigrate permanently with a labor certification (see “Temporary Work Visas”). About 70 percent of jobs in the United States do not require a bachelor’s degree,³⁷⁸ and only about 10 percent of the world’s population has a four-year college degree, making the lack of a temporary, year-round work visa for lesser-skilled workers among the most significant restrictions in America’s employer-sponsored immigration system.³⁷⁹

Notwithstanding the costs, many employers will file labor certifications for lesser-skilled workers if the workers are already at work in the United States. For instance, when Congress opened a brief window for just a couple of months in 2001 to file labor certifications for illegal immigrant workers, employers quickly filed 235,000 applications.³⁸⁰ But Congress has not renewed this provision, and the lack of a year-round, lesser-skilled temporary work visa for immigrants applying for a labor certification means that their employers continue to hire people who reside in the country illegally. Even if a temporary work visa did exist, however, workers with jobs that require less than two years of training or experience (the equivalent of an associate degree) face a hard cap of just 10,000 annually.³⁸¹

Overall, only about 28,000 immigrant workers received green cards through the individual labor certification process in 2019 (Table 5), accounting for 0.02 percent of all workers in the United States.³⁸²

The time-consuming labor certification effectively requires nearly all immigrants seeking employer-sponsored green cards abroad to obtain temporary work visas. Only four temporary work visa categories are directly relevant for immigrants who are applying or intending to apply for an employer-sponsored green card: the R‑1 for religious workers (discussed earlier), the O‑1 for immigrants with “extraordinary ability,” the L‑1 for intracompany transfers, and the H‑1B for specialty occupation workers.³⁸³ No other temporary visa may be issued if the applicants are planning to stay in the United States beyond their temporary period of authorized stay to adjust to legal permanent residence.³⁸⁴ With one minor exception, other temporary visas for students, business travelers, exchange visitors, and workers also must demonstrate “nonimmigrant intent”—that is, proof of a foreign residence that they have no present intention of abandoning.³⁸⁵

About 25 percent of international students, for instance, were denied a visa in 2019, mostly for having immigrant intent.³⁸⁶ Nonetheless, many immigrants do use these other categories to get a foot in the door and find an employer willing to sponsor them. They may claim to have changed their intent to immigrate after they received their visa and entered the United States. But this is a semilegal workaround for a system with a contrary design. Only the O‑1, R‑1, L‑1, and H‑1B visas are explicitly designed to legally accommodate temporary-to-permanent transitions. Even these visas do not directly lead to permanent residence. Immigrants must still meet all the relevant permanent residence requirements in addition to the requirements for the temporary visa. Table 7 summarizes the rules for these types of visas.

The O‑1 visa is for temporary workers with “extraordinary ability,” and the requirements track the EB-1A “extraordinary ability” self-sponsored green card category (discussed above).³⁸⁷ The main differences are that the O‑1 requires sponsorship by an employer (or an agent for workers where agents are common), and unlike a green card, the O‑1 visa holder must demonstrate their qualifications and renew O‑1 status every year, starting three years after admission. Unlike the EB-1A category, O‑1 visas have no cap.³⁸⁸ If they cannot obtain an EB-1A green card because of its higher standard, O‑1 visa holders commonly try to receive a national interest waiver green card (described above). Given these easier options, the O‑1 visa is almost never used for immigrants who need a labor certification.³⁸⁹

The next most common temporary visa for employer-sponsored immigrants is the L‑1 visa (see Box 16). The L‑1 is only for intracompany transfers of employees transferring from a branch of a U.S. multinational firm abroad to a U.S. affiliate in the United States.³⁹⁰ Using the L‑1 visa, a U.S. multinational firm can bring over certain employees without a cap and have them work in the United States temporarily for at most five years (for specialized knowledge workers) or seven years (for executives or managers). Although they are not required to do so, employers may simultaneously use the labor certification and sponsorship process to obtain a green card for these employees.³⁹¹ U.S. multinational firms had about 14 million workers abroad in 2017, but the L‑1 category is far too restrictive to allow for a significant shift of employment to the United States.³⁹²

The L‑1 visa criteria are almost the same as the EB-1C category for multinational executives and managers (described above). However, rather than accepting only executives and managers who qualify for green cards under the EB-1C category, the L‑1 is also available for any employee sponsored by a U.S. multinational firm who has “specialized knowledge” defined by what is “generally found in the particular industry” or “generally found within the employer.”³⁹³ This nebulous and difficult standard has led to an extremely high rate of denials (33 percent in 2020) for specialized knowledge workers (known as L‑1B).³⁹⁴ Such a high denial rate acts as a deterrent even to employers whose employees may qualify. While the L‑1 does not explicitly require a college degree or its equivalent in job experience to qualify, it is rare for the government to accept claims of “specialized” knowledge by anyone else.³⁹⁵ The L‑1 visa requires employers to pay additional fees of between $960 and $7,960 per worker, depending on the employer’s characteristics and processing speed requested, further disincentivizing moving employees to the United States.³⁹⁶ In 2023, the administration was working to finalize a new regulation to increase these L‑1 fees.³⁹⁷

The H‑1B visa is the main visa category used by employers that sponsor their foreign workers for a green card using the labor certification process. Box 17 summarizes its requirements. The H‑1B visa is open to any employee in a “specialty occupation” or a fashion model with a high degree of notoriety.³⁹⁸ All H‑1B workers must receive the higher of the prevailing wage or the actual wage paid to similar employees. If the employer is an H‑1B dependent employer—defined for companies with at least 50 workers as having 15 percent or more of its workers in H‑1B status—the job must offer at least $60,000 annually in wages or the employer must recruit U.S. workers for the position.³⁹⁹ About a quarter of H‑1B requests are filed by H‑1B dependent employers, but only 6 percent of H‑1B workers have job offers below the $60,000-per-year threshold.⁴⁰⁰ The fees for the H‑1B visa are more substantial than for the L‑1 visa: between $5,720 and $8,510, depending on the size of the employer, how many H‑1B workers they already have, and the processing time needed.⁴⁰¹ In 2023, the administration was working to finalize a new regulation to increase these H‑1B fees.⁴⁰²

To qualify as a specialty occupation worker, the employee must have a bachelor’s degree or foreign equivalent.⁴⁰³ Some foreign degrees that conclude in less than four years do not qualify as “equivalent,” but three years of experience in an occupation requiring a bachelor’s degree can substitute for every one year of college missed.⁴⁰⁴ Not only does the job need to normally require a four-year bachelor’s degree, but it must also require the workers to have a degree in a specific specialty.⁴⁰⁵ The government has denied H‑1B petitions, to take two examples, for an event planner and for a public relations specialist because these jobs do not normally require a degree in a specific specialty.⁴⁰⁶ Immigrants can also have a degree not specific enough for the type of job. For instance, the government has denied an H‑1B visa to a restaurant manager who had a general business administration degree because the degree was not in a specific specialty related to the job.⁴⁰⁷

For a qualifying immigrant, the most difficult part of the H‑1B process is finding an employer willing to undergo the costly sponsorship process. Because the fees and attorney costs can exceed $10,000 and employees are prohibited from covering these costs, only select employers are willing to initiate the H‑1B process for certain very high-performing employees.⁴⁰⁸ In 2021, the median H‑1B worker had a higher salary than 93 percent of U.S. workers.⁴⁰⁹ The overwhelming majority of H‑1B workers hired abroad—that is, not poached from other companies in the United States or recruited from U.S. university campuses—are employees of multinational firms with offices in their home countries (most commonly India).⁴¹⁰ They are hired at offices abroad and brought to the United States in situations where an L‑1 is not an option. Immigrants from countries without a significant U.S. multinational presence face extremely long odds to obtain an H‑1B visa.

Even if an immigrant can qualify and find a willing employer, the law caps H‑1B visas at 85,000 (with 20,000 reserved for applicants with advanced degrees), and the visas are usually assigned through a lottery six months before the start of the year.⁴¹¹ The law exempts employees of nonprofit or government research organizations, universities, and university-affiliated nonprofits from the cap.⁴¹² Nonetheless, in 2022, the number of cap-subject H‑1B requests for FY 2023 reached 483,927, meaning that 82 percent of H‑1B requests will not result in an H‑1B visa being issued (see Figure 24).⁴¹³ Once a worker obtains H‑1B status and completes the labor certification process, H‑1B and L‑1 workers face a much steeper fee to receive permanent residence than if they had immigrated directly from abroad with an immigrant visa: $1,225 versus $565.⁴¹⁴ The administration plans to increase this fee to $1,540 in 2023.⁴¹⁵

The result of the labor certification, temporary work visa process, and green card caps is that foreign workers face a virtual gauntlet of bureaucratic procedures before they can receive permanent residence. Every step in the process creates new opportunities for denials or problems that could result in workers being denied or employers giving up on the process altogether.

The H‑1B lottery has a 74 percent rejection rate.⁴¹⁶ The labor condition application to the Department of Labor is practically a formality, but nearly half a percent are rejected.⁴¹⁷ The H‑1B visa has a 7 percent denial rate.⁴¹⁸ Another 4 percent of H‑1B employer petitions are denied.⁴¹⁹ Then, only about 44 percent of H‑1B workers are sponsored for green cards by their employers.⁴²⁰ Of course, some workers never asked their employers for a green card and some get green cards through other means (such as marriage to a U.S. citizen), but regardless, the best evidence is that many workers never get sponsored. Then, even if they do, 4 percent of labor certifications are denied,⁴²¹ and 51 percent of green card applicants are from India and face an insurmountable wait time for a green card cap spot.⁴²² Even if a cap spot is available, 4 percent of employer petitions are denied.⁴²³ Finally, 5 percent of green card applications are denied.⁴²⁴ A simple path to an employer-sponsored green card does not exist for most immigrants.

Even if an employee can win the lottery, obtain an H‑1B visa, and later receive an approved labor certification, they will still be subject to the annual green card limits. Figure 25 shows the backlog of employment-based green card applicants (employer-sponsored and self-sponsored) and the number of employment-based green cards issued under the caps (which include the spouses and minor children of the applicants). The backlog—which includes immigrants in every stage of the process—was about 1.4 million in 2021.⁴²⁵ This was higher than the 1.2 million in 2018—the first year that the government released statistics on the employer-sponsored backlog (see Figure 25).

Congress has capped the number of employer-sponsored and self-sponsored employment-based green cards in two ways. First, immigrants are grouped into five broad categories (EB‑1–EB‑5) and one subcategory (EB-3O), and each category has a cap that includes immigrants’ spouses and minor children.⁴²⁶ Second, immigrants from each country receive an allotment of 7 percent of the total number of green cards available, plus unused numbers for that country in other categories and any unused visas by any other country in that category.⁴²⁷

Table 8 shows the caps, the country limits, the backlog awaiting a cap number, and the top backlog nationality. In fiscal year 2022, 875,550 employment-based petitions (including dependent family members) were awaiting a cap number—more than six times the normal worldwide limit.⁴²⁸ For the most common categories (EB‑2 and EB‑3), the backlog was nearly 10 times the normal worldwide limit. But because of the country limits, the backlog is not equally distributed, and immigrants born in India represent 82 percent of the employment-based backlog. Usually, these employer-sponsored caps affect only Chinese and Indian applicants plus Central Americans in the EB‑4 category.

In September 2021, the EB‑1 category—which has a cap of 40,040 and includes outstanding professors and multinational executives and managers along with the nonsponsored immigrants with extraordinary ability—had effectively no backlog because of the caps.⁴²⁹ Although the next two employer-sponsored categories (EB‑2 and EB‑3) had no backlog for most countries, they had a combined backlog of 60,853 for Chinese and 719,737 for Indians, including their spouses and children immigrating with them.⁴³⁰ In 2019, the last normal pre-pandemic year, Chinese and Indians received just 7,051 and 7,991 EB‑2 and EB‑3 green cards, respectively, both somewhat higher than their country caps because they received some green cards that would otherwise go unused.⁴³¹ Nonetheless, these numbers imply future wait times of nine years for Chinese and 90 years for Indians.

For Chinese, those who apply now could use the H‑1B visa to enter first and work in the United States until a number is available. For Indians, the wait is now so long it is effectively the equivalent of a prohibition on green cards for new applicants. With a 90-year wait, effectively 100 percent of all new EB‑2 and EB‑3 Indian employer-sponsored applicants will die before they receive a green card. The EB‑4 category for religious workers who are waiting with other “special immigrants” is backlogged for Guatemalans, Hondurans, Salvadorans, and Mexicans who will have to wait between 3 and 14 years. The EB‑5 category was backlogged for all countries, but most especially for Chinese, who will have to wait about eight years.

Employer-sponsored immigration is extremely constrained. Figure 26 shows the number of employer-sponsored green cards by type as a percentage of total employment in the occupations the category covers. Religious workers are the most common in their occupation at a still-minuscule 0.5 percent, but the other categories are even smaller. Not surprisingly, the most regulated—the labor certification—is the least represented among all jobs. If employer-sponsored workers overall were as utilized as the religious worker category, more than 700,000 workers would receive green cards through it each year, compared with fewer than 30,000.⁴³² Despite its massive potential, the rules on employer-sponsored immigration have relegated the system to a far less significant contribution than it could have with fewer bureaucratic obstacles. The restrictions on the employer-sponsored immigrants are particularly unjustified because the job offer requirement already demonstrates a market demand for their skills.

Because temporary visas are such an important gateway to an employer-sponsored green card, Congress should allow immigrants in any temporary visa category to intend to seek a green card. Requiring student visa holders, for example, to prove an intention to return home after graduation sends many students to other countries where they will contribute. Temporary visa applicants should not be denied as long as they can show that they intend to follow the visa’s rules—including returning home if they cannot receive a green card. The R‑1, O‑1, L‑1, and H‑1B visas show that this level of scrutiny is sufficient.

What is perhaps the most important restriction is nowhere laid out in law or regulation: the time it takes for the bureaucracy to approve an immigrant visa (Table 6). The fact that it can take up to three years to receive an approved immigrant visa necessitates using the more restrictive temporary work visas. The government can maintain essentially the same requirements and process but finish them in an expedited manner. In the case of H‑2A seasonal farm workers, for instance, the labor certification, petition approval, and visa issuance can take as little as 45 days, but H‑2A workers cannot simultaneously immigrate permanently because the jobs are seasonal, not permanent.⁴³³

Unlike the permanent labor certification process, the H‑2A program also does not require the employer to “name” the specific foreign worker that it wants to hire until the worker applies for a visa—the last stage—and even then, the employer can immediately replace the worker with another if the worker is denied a visa, abandons the process, becomes sick, or is no longer needed.⁴³⁴ These features greatly reduce the risk of employers undertaking the process only to never obtain any worker at all. Moreover, the H‑1B does not require employers to obtain a “prevailing wage determination.”⁴³⁵ Employers can simply look up the government-approved wage for their occupation and submit their application, cutting out nearly half a year from the process.⁴³⁶

The H‑1B also has no labor certification that is mandatory for all H‑1B employers, so most employers may use whatever recruitment process that they normally rely on to find a worker.⁴³⁷ They do not need to find the worker and then start over again, recruiting U.S. workers to a job that is already filled and hoping that no one “minimally qualified” applies. Employers should not have to conduct burdensome, duplicative recruitment since green card holders create demand for other jobs for U.S. workers. The labor certification also forces employers and immigrants to rely unnecessarily on temporary work visas, delaying the period before the immigrant receives a green card. Before Congress made the labor certification mandatory for most employer-sponsored immigrants in 1965, about 84 percent of employer-sponsored immigrants entered on immigrant visas and became permanent residents right away.⁴³⁸ Today, more than 90 percent are already in the United States.⁴³⁹

Even if a labor certification is required, the government should not require the employer to incur the costs of obtaining one, as it does now.⁴⁴⁰ By imposing the full cost of the entire process on the employer, it drastically reduces the incentive for employers to sponsor workers and denies immigrants the ability to control their immigration pathway. The government should also allow immigrants to obtain a labor certification and cover its costs without going through the employer at all, such as by presenting relevant data on labor needs in the area. An even better reform would shift the burden of proof for showing that an adverse effect would occur to the government, so that no action is taken unless the government proves that an adverse effect will actually occur.

The R‑1, L‑1, and O‑1 visas take the streamlining a step further by not requiring the prevailing wage.⁴⁴¹ There is no reason to have a mandatory minimum wage to obtain a green card. If green card holders are underpaid, they can leave, change jobs, or negotiate for higher pay on equal footing with any American. To reduce illegal immigration, however, Congress must also create a streamlined work visa program for year-round, lesser-skilled workers. Employers cannot afford to hire lesser-skilled immigrants through the lengthy and expensive green card process, and the lack of a temporary work visa for year-round workers without a bachelor’s degree makes it impossible for these immigrants to come through employer sponsorship.

Most importantly, Congress should repeal both the overall and country-based employer-sponsored caps. The country caps irrationally discriminate based on birthplace, and the overall caps keep workers either out of the country or, if they have a temporary work visa, stuck in roles that may be less suited to their skills. The worker has already demonstrated that they will be contributing to the U.S. economy and has already counted against the H‑1B cap in most cases, so Congress should at least eliminate the caps on employees adjusting to permanent residence already in the United States. Even more absurd is the fact that Congress has not even slightly modified the cap structure in over three decades. If Congress does keep the caps, it should reform them to make them automatically increase or decrease in conjunction with economic growth.

The U.S. legal immigration system is extremely restrictive. By design, it excludes the vast majority of potential immigrants. The basic presumption of the current legal immigration system is that no one may immigrate legally unless they fall into very narrow exceptions. By walking through these exceptions, this paper demonstrates that the strict criteria keep out nearly all immigrants who wish to come. The administration should loosen all the restrictions that it has imposed above and beyond what Congress has required, and Congress should overhaul the system to open legal immigration for any person willing to work to contribute to the success of the United States.

Bier, David J. “Why Legal Immigration Is Nearly Impossible: U.S. Legal Immigration Rules Explained,” Policy Analysis no. 950, Cato Institute, Washington, DC, June 13, 2023.