Demand for Permanent Residence in the United States – Unfortunately Supply is Outpaced by Demand!

There was a recent article from the New York Times entitled “Wary of Future, Professionals Leave China in Record Numbers”    The gist of the article is that Chinese professionals are leaving China due to their concern over the Chinese government’s communist policies and leaving for Western countries such as the U.S., Australia, and India.  The article stated that in 2011,” the United States received 87,000 permanent residents from China, up from 70,000 the year before. Chinese immigrants are driving real estate booms in places as varied as Midtown Manhattan, where some enterprising agents are learning Mandarin, to the Mediterranean island of Cyprus, which offers a route to a European Union passport.” I definitely agree with the economic catalyst that immigration from overseas professionals provides to the United States.  Clearly the professionals from China contribute a great deal to their communities in terms of economic benefits, skilled labor, and in social diversity.  The problem in my opinion and experience as an Immigration Lawyer, is that the U.S. is losing out to other countries.  I have had many clients and friends that are extremely well educated and highly capable persons from China, educated with advanced degrees in the U.S. and either unable to obtain a job in the U.S. or unable to secure a visa number.  This is due to small amount of available green cards allotted by the United States Congress as well as the restrictive U.S. Immigration laws, which ends up deterring some of the best and brightest from not only China, but the rest of the world.  For example, a person from China educated in the U.S. with a Bachelor’s Degree or higher may want to live and work in the U.S.  In most cases, a suitable visa for this type of situation is an H1B Visa.  An H1B visa is for skilled workers with the equivalent of a US Bachelor’s Degree that have a job offer from an employer in the US.  Congress allots 65,000 available H1B visas and an additional 20,000 for persons earning a Master’s Degree or higher in the United States.  The first day United States Citizenship and Immigration Services (USCIS)  will accept an H1B petition is April 1 for employment on October 1 of the same.  In a poor job market such as the past few years, it may take several months to use up the available H1B visas (H1B cap), and in a good job market there may be twice the amount of petitions filed on April 1 (i.e. opening day for H1B’s) for the precious few H1B visas alloted by Congress.  The problem is, once these H1B visa are used up, persons from China generally have limited options.   Some persons from China would like to start a business if they can’t obtain a job, or may strictly be an entrepreneur and bypass the job market to open a business.  Well, for most country’s this is an option through an E2 visa, but its not an option if you’re from China unless the Chinese National would like to invest $500,000 to $1,000,000 (EB5 Investor Green Card) in a business that will create 10 US full time jobs within the first 2 years.   The reason being is E2 visas are available for nationals from countries that have a Treaty with the United States, thus China and India do not have the necessary treaty to make its persons eligible for an E2 visa.  As I have argued in past articles, Congress should eliminate the Treaty requirement and make an E2 visa available to everyone.   As the New York Times article states, 87,000 people from China received permanent residence in the United States.  Unfortunately, the supply of green cards for persons from China does not come anywhere near equaling demand.  There are essentially 3 ways to obtain permanent residence in the United States (there are more ways but for all practical purposes these are the main 3 ways):
  1. Marriage to a US Citizen – Congress allots an unlimited amount of marriage based green cards per year for persons marrying U.S. Citizens;
  2. Family based other than marriage through a US Citizen – Congress allots up to 226,000 family based green cards and each country is capped at at a maximum of 7% of the total allotment.   
  3. Employment based through a personal achievement (ie. extraordinary ability EB1, job offers for advanced degree and skilled workers EB2 and EB3, and Investors EB5) – Congress allots up to 140,000 employment based green cards and each country is capped at at a maximum of 7% of the total allotment.
The excess demand based on Congress’ allotment of available green cards and country limits of 7% creates a backlog for both family based and employment based green cards.  For instance, a person from China or India that is the spouse or child of a permanent resident already living in the United States would be eligible for category F2A green card and would have an estimated wait time of approximately 2.25 years.  A person from China and India eligible for a Employment based green card based on having an Advanced Degree and a job offer from a U.S. employer requiring the advanced degree would have in excess of a 5 year and an 8 year wait period for a green card respectively.  In other words, if a person from China has a Master’s Degree in a highly sought after field such as Computer Engineering, and an employer extends a permanent job offer, a person from China would have to wait 5 years for a green card and go through a lot of zigging and zagging to maintain their non-immigrant status while waiting in the U.S. for this green card.  They also need to hope that over the next 5 years, nothing happens to the permanent job offer.  As we all know, 5 years is a long time to keep the status quo.  In my opinion, this 5 year wait period (6 years if a Chinese National is qualified for an EB3) can be a big deterrent for someone highly skilled to wait when Canada and Australia, both known for having much more relaxed permanent residence rules have growing economy’s with demand for these same skilled workers.
As the New York Times suggests, there is much demand for permanent residence in the United States than Canada, Australia for some of the best and brightest people from India and China.  This also applies to other countries such as India where in many situations, there is even greater demand than from China, especially in the IT field.  The United States greatly benefits from Immigrants, and unfortunately the laws and cap on visa numbers and permanent resident numbers do not quite address to accommodate this demand.  With the election over, hopefully Congress and President Obama will address the problems of our immigration system.