In a time when the global competition for talent is fierce, the U.S. finds itself grappling with a legal immigration system that seems misaligned with the current realities of the job market and technological advancements. The existing quota system, established by the Immigration Act of 1990, dictates the annual allocation of visa numbers, setting a stringent limit that appears inadequate in today’s fast-paced, globally connected world. Under this outdated framework, numerous skilled workers and their families face decades-long waits for green cards, a predicament that severely curtails America’s ability to retain top talent from around the world.

The Legal Provisions: INA Section 201 and Section 245(a)(3)

The prevailing issues primarily stem from the outdated provisions in the Immigration and Nationality Act (INA). Specifically, INA Section 201 prescribes an annual minimum family-sponsored preference limit of 226,000 and a worldwide level for annual employment-based preference immigrants of at least 140,000. Furthermore, the INA section 202 imposes a per-country limit, which restricts the annual allocation of visas to any one country to 7% of the total number of family-sponsored and employment-based visas.

Arguably, the most notable shortcoming of this legislation is its failure to adapt to the rapid advancements and changes in the job market since its inception in 1990. A significant surge in technology-driven roles, many of which are filled by skilled foreign workers, clearly illustrates the widening gap between the provisions of the INA and the contemporary needs of the U.S. economy.

Revitalizing the Visa Bulletin: A Plausible Solution

To rectify this situation, policymakers could look towards revising the dates in the State Department Visa Bulletin. This critical document consists of two parts: the Final Action Dates and the Dates for Filing. The former stipulates when the green card can be issued, whereas the latter indicates the earliest date an individual can apply for an adjustment of status. By making the Dates for Filing “current,” a significantly larger number of individuals languishing in backlogs would be able to apply for adjustments of status, thereby allowing for greater mobility and flexibility in their careers and personal lives.

According to INA section 245(a)(3), the filing of an adjustment of status application is permitted when “an immigrant visa is immediately available” to the applicant. Historically, the term “immediately available” has been subject to interpretation, often construed as visa availability at a future point rather than immediate issuance. Leveraging this flexible interpretation could potentially facilitate the acceleration of the Dates for Filing, which in turn would alleviate the strain on many waiting in the backlog.

Legal Challenges and the Role of Congress

While this proposed change is not immune to potential legal challenges, the administration stands on solid ground to defend such alterations, especially given the existing precedence of Chevron deference, which encourages courts to defer to the government’s interpretation of statutes. Additionally, recent rulings, such as United States v. Texas, indicate a tendency to restrict states from intervening in federal immigration policy, potentially reducing the likelihood of successful legal challenges against changes in the Visa Bulletin.

Beyond adjusting the Visa Bulletin, Congress holds the power to enact more permanent and far-reaching reforms. These could include recalibrating the annual visa allocation to reflect current demands, allowing for the filing of adjustment of status applications regardless of the current priority date, and potentially reclaiming wasted visa numbers from previous years.

Towards a Functional and Fair Immigration System

Addressing the chronic delays in the green card process is not just a matter of legal adjustments but also a crucial step in fostering a vibrant, competitive, and inclusive economy. The current system, characterized by substantial backlogs and aging-out children of immigrants, fails to uphold the values of a nation built on the principles of opportunity and inclusivity.

Revamping the existing framework to better align with today’s demands will not only prevent the loss of skilled professionals to other countries but also reinforce the U.S.’s standing as a global leader in innovation and opportunity. It is an imperative move to ensure that the nation continues to benefit from the invaluable contributions of immigrants, who have historically been a driving force in the U.S.’s journey towards progress and prosperity.

By: Rahul Reddy

Rahul Reddy, a seasoned lawyer in the realm of employment-based immigration, is the founding partner of Reddy & Neumann PC. With an impressive career spanning over 28 years, he inaugurated the firm in 1997, bringing a wealth of knowledge and a unique perspective to the intricate landscape of immigration law.

Rahul’s understanding of the complexities inherent in the immigration system is vast and nuanced, making him an indispensable resource in this specialized field. This comprehensive expertise, coupled with his personal encounters with the immigration system, has imbued him with a profound empathy for his clients. Each case he undertakes is informed by this personal connection, as he understands the unique challenges and aspirations that drive individuals to navigate the immigration process.

Passionate and committed, Rahul is driven by a desire to assist others in realizing the quintessential American Dream. His mission, underpinned by years of professional experience and personal insight, remains focused on providing excellent legal support to those seeking employment-based immigration solutions.