Business immigration visa quotas have long presented a major hurdle for employers and employees. There is no logic to the quota systems that Congress has in place, and quotas are not accurately connected with economic reality.
The current systems exist in both the employment-based immigrant visa categories that lead to permanent residence and in the non-immigrant work visa categories.
It is important for the US economy that Congress takes the necessary steps to update the employment-based visa system and reform the quota issue. Without these changes, employers will continue to struggle to fill jobs in many industries, such as nursing, and other highly skilled positions.
The employment-based, or IV, quota system is complex, with priority dates and places in a queue per immigrant visa category and country. There are approximately 140,000 IVs available in five preference categories.
Under the per-country cap established in 1990, no country can receive more than 7% of the total number of employment-based preference IVs each year. There have been many attempts to eliminate the per-country quotas as they severely impact a small number of countries, like India, and cause multi-year processing backlogs.
Given the lack of congressional overhaul of the IV system, there have been many attempts to mitigate the impacts of the system. These include attempts to::
- Recapture unused IVs from previous fiscal years. There are estimates of more than 200,000 such visas.
- Define who should be counted or allocated an IV in each category. Currently the principal IV applicant and their dependents each are allocated a visa. At a minimum, only the principal immigrant should be counted.
- Exempt certain IVs from the quota system, including individuals who have received a Ph.D. from a US educational institution, those with extraordinary ability, and those who invest significantly in the US economy.
Unfortunately, even attempts to carve out exemptions for IVs both legislatively and administratively have been futile.
Employment-Based Non-Immigrant Visas
As with IVs, there are caps and quotas on key work visas. These include the H-1B and H-2B non-immigrant work visas, or NIVs.
The H-1B visa is used by most employers that want to sponsor professionals in a specialty occupation. Since 1990 caps have been imposed on the number of H-1B visas. The caps range from 65,000 up to 195,000 per year.
Currently, there are 85,000 H-1B visas with 20,000 reserved for those with a minimum of a US master’s degree.
The H-2B visa is used for temporary, seasonal, and peak load workers who are lesser-skilled and non-agricultural. There is a cap of 66,000 visas per year, with some ability to add a limited numbers of workers on a discretionary basis.
Because there is so much demand for the H-2B visa for seasonal employment, and since there are no visas available for lesser-skilled workers in year-round occupations, some businesses attempt to squeeze workers into this category. This is only further straining the system.
Despite shortages in these occupations, which include senior care, child care, nursing, hospitality, construction, meat and poultry processing, restaurants, retail, and manufacturing, there are no available NIVs for these workers.
NIVs that permit work in the US do not have caps. Why are some visas and not others capped? Why not have a logical cap system for NIVs?
Fixing the Problem
Efforts to address some of these concerns have not been successful, despite bipartisan agreement in the Senate in 2006 and 2007, and again in 2013. The US economy is now paying the price.
Tens of thousands of migrants seek refuge in the US for myriad reasons, including to better themselves or to protect themselves or their families. These individuals likely want to work in the US, and most of them do—many illegally.
If the US had a legal way to bring needed workers into the country, we could significantly change the flow of migration from an undocumented flow to a legal flow.
Changes are needed to immigration laws to meet business needs for lesser-skilled or essential workers, and reform the quotas in both the immigrant and non-immigrant visa system. Such reforms would help bolster the US economy and national security, and would bring our immigration system into the 21st century.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
Laura Foote Reiff is a shareholder and co-founder of Greenberg Traurig’s business and immigration and compliance group. She represents businesses and organizations in immigration and compliance matters.