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ImmigrationProf Blog
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Immigrants and the Visa Backlog Problem

By immigrationprof

Guest blogger: Gabriela Huerta, law student, University of San Francisco:

Individuals who are admitted as immigrants become lawful permanent residents with a statutory path to citizenship. There are two major categories for immigrant visas: employment-based and family-based visas. Family-based immigrant visas make up the largest share of visas in the United States immigrant visa system.

Under the Immigration and Nationality Act (INA) §203(a), family-based visas are distributed to immediate relatives, and first, second, third, and fourth preferences. The immediate relative category is uncapped, and includes children under the age of 21, spouses, and parents of adult U.S. citizens. The citizen petitioner of a parent must be at least 21 years of age. The first preference category offers 23,400 visas per years, for unmarried sons and daughters over the age of 21 of a U.S. citizen petitioner. The second preference offers 114,200 visas per year, split between 75 percent to those in the 2-A category, and 25 percent to those in the 2-B category. 2-A is for spouses and children under 21 of a lawful permanent resident petitioner, while 2-B is for unmarried sons and daughters that are 21 and older of a lawful permanent resident petitioner. The third preference category consists of 23,400 visas per year, for married sons and daughters of U.S. citizen petitioners and the spouses and children under 21 of those sons and daughters. The fourth preference has 65,000 visas annually, for the brothers and sisters of U.S. citizens and the spouses and children of those brothers and sisters. The petitioner must be at least 21 years of age.

Under INA §203(b), employment-based visas are allocated among priority workers (EB-1), members of the professions with advanced degrees (EB-2), skilled workers (EB-3), certain special immigrant (EB-4), and employment creation visas (EB-5). Those in the EB-1 category include workers of extraordinary abilities in the arts and sciences, outstanding researchers, and multinational executives and managers. Those in the EB-2 category are members of the professions with advanced degrees and noncitizens with exceptional ability. The EB-3 category includes skilled workers, professionals, and other workers. The EB-1, EB-2, and EB-3 category each have approximately 28.6 percent of the total employment visas, which is approximately 40,000. The EB-4 category is for certain special immigrants, which has 7.1 percent of the total number that is about 10,000 visas. The EB-5 category is for the employment creation visas, which is also about 10,000 visas, consisting of 7.1 percent of the total number. Any unused employment-based visas are added to the family-based visa cap for the following year, and unused family-based visas are added to the employment-based visa cap for the following year.

            The per-country visa ceilings are set forth in INA §202, which states that each country can receive up to 7 percent of the total annual visas allocated to each preference category. These limits apply to employment-based and family-sponsored categories, while immediate relatives are exempt from these per-country limits. There are some countries that do not use anywhere near their cap, while others reach the cap every year. For those countries that hit the cap year after year, the foreign nationals in the visa application process experience significant wait times. For countries like Mexico, India, China, and the Philippines, there are backlogs in the availability of immigrant visas due to the high number of applications. Such wait times can reach to more than 25 years. Such drastic wait times can be seen in a typical Visa Bulletin: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2024/visa-bulletin-for-october-2023.html.

            The visa backlog problem has directly affected thousands and thousands of prospective immigrants and U.S. citizens. Despite the increase of immigrant visa demands, the immigration system has failed to respond in a proper manner. Although unused visas from one year are recycled into different visa categories for the following fiscal year, a dent has not been made in some of the visa categories, particularly in family-based visa categories like 2-B, 3, and 4. It is unacceptable that a country with such vast resources has put the visa backlog problem on the “backburner” for decades. There is no excuse for the lack of response to this issue.

There have been many proposals addressing the backlog problem. The proposals to increase the number of green cards or eliminate/increase country caps sound promising. Acts like the proposed 2021 Resolving Extended Limbo for Immigrant Employees and Families Act (RELIEF) that would increase the annual visa numbers for five years, or the proposed U.S. Citizen Act of 2021 which would raise the cap of visas, would make a major difference. https://goaiia.org/solving-the-visa-backlog-problem/. Representative Judy Chu (CA-28) recently reintroduced the Reuniting Families Act that would more than double the number of available family preference visas and raise existing per-country yearly visa limits. It may not be a permanent solution, but backlogs could be significantly reduced enough to make the difference that is needed to reduce the wait times for many visa applicants.

There is no justification for maintaining the tremendous visa backlog. If it is not addressed now, it will continue to increase. The purpose of employment-based visas is to fill jobs and stimulate the U.S. economy. Why are skillful employees prevented from working? The purpose of family-based visas is the reunification of families. Why are families being separated?

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