Canadians, Others Brace As U.S. Shuffles Green Card Deck

Canadians and other nationals are bracing against a serious new threat to their eligibility to get green cards under American immigration policy. This, after Prime Minister Justin Trudeau just sidestepped another U.S. threat, by grudgingly signing the USMCA free trade agreement without getting a concession on American steel and aluminum tarrifs that are cripplying the Canadian economy. In the case of the USMCA, since Mexico’s leadership was about to change and the U.S. political landscape had changed for President Trump after U.S. elections, it boiled down to: deal or no deal for Canada. It seems that Canada had to “take one for the team,” while President Donald Trump and Mexican President Enrique Pena Nieto also signed on to the agreement. So that was round one. But now, here comes round two: U.S. immigration policy is threatening to cut out access to green cards for Canadians, as well as for others. This will be of special concern to Canadian managers, executives, IT workers and snowbirds.

The threat comes in the form of an alarming amendment introduced by Rep. Kevin Yoder (R-KS) that has been included in the Department of Homeland Security Appropriations Bill for FY 2019. The Yoder Amendment, which aims to eliminate the per-country cap for employment-based immigrant visas, will adversely impact Canadians and a good number of immigrants from other countries. The Yoder Amendment seeks to replace the current immigration policy of allocating immigrant visas based on the country of origin of high-skilled workers, to allocating immigrant visas based on wait times instead. This shift in prioritization by adopting wait times as the selection method instead of country of birth, means that these immigrant visas will be doled out on a first-come-first-serve basis instead of by country of birth.

Given current American immigration policy regarding highly skilled workers, according to the State Department’s visa bulletin there are currently very few or almost no green cards available for foreign high skilled workers whose country of origin is India, China or the Philippines. That is because Congress has not increased the overall number of immigrant visas available to highly skilled foreign workers and therefore they are delayed by the yearly quota on the number of immigrant visas allocated to their country of origin. But apart from those three countries, foreign high skilled workers from all other countries, including Canada, are current.

To overcome this problem, the technology industry in particular has been hiring these highly skilled tech workers on a temporary basis through the H-1B work visa program over the past two decades. While their employees are working on an H-1B temporary visa, employing a temporary bridging formula, tech employers file immigrant petitions for such employees to enable them to stay in America and keep working until an immigrant visa opens up. Since green card numbers are restricted, this has caused a long line up to wait for immigrant visas. Yoder’s amendment seeks to eliminate the per-country cap for employment-based immigrant visas in favor of prioritizing them based on wait time. This would prioritize the tech-industry to the detriment of other industries and advance the fate of tech workers from the backlogged countries at the expense of workers from other countries. Instead of opening up more green cards so everyone can get in, the Yoder amendment plays off workers from one set of countries and industries against those from others.

Take the Canadian example to make this threat more understandable.

The three American immigration green card categories we are talking about are EB-1, EB-2, and EB-3 categories. The State Department reports that in 2017, Canada got 1,497; 2,038; and 1,222 immigration visas, respectively: a total of 4,757. (In other years, Canada has gotten substantially more.) Under the Yoder language, some analysts have read those totals to be reduced by 77% in the first year, 85% in the second year, and then to zero or close to it (particularly in EB-2) for an extended period. That’s bad enough.

But it gets much worse: Doing the math in the EB-1 category, the priority worker category in which Canada has been getting 1,500 or so green cards a year (extraordinary ability, outstanding professors, and multinational managers), Canada would be immediately reduced to zero – indefinitely. Should Yoder pass (using 2017 numbers) in 2019, of the nearly 5,000 Canadians who would have gotten employment-based green cards under current law, more than 4,000 would find immigration visas unavailable – none in EB-1. In 2020 and 2021, American employers who have been sponsoring 5,000 or so Canadians a year for green cards, would have barely 700 available – none in EB-1.

After that, there would be none for Canada in any employment-based immigration category until the backlog equalizes for all nations. There is now a backlog, limited to two source countries, of 140,050 in EB-1; 466,602 in EB-2, also limited to two sources; and 125,864 – three countries, not including Canada – in EB-3: a backlog of nearly three quarters of a million green cards, which the Yoder amendment would require to be equalized – not eliminated – before Canadians sponsored by American employers could start getting immigration visas again. In the EB-2 category alone, where applications for Canadians are now current, there would be a 12 year wait, should Yoder become law.

In short, the elimination of per-country caps for employment-based immigrant visas does not address the fact that there are not enough immigrant visas available to meet the high demand for foreign-born highly skilled workers in the US for all sectors and industries.

Comprehensive immigration reform, rather than band-aid solutions that seek to favor one sector or industry, or one set of countries to the detriment of others, is necessary. For Canada, enacting these surely unintended consequences in an appropriations bill in a lame-duck session of Congress poses a serious threat to a lot of Canadians who are looking to live and work in the United States.

Back to the drawing board!

(Author Andy J. Semotiuk is a U.S. and Canadian immigration lawyer, published author and former UN Correspondent with offices in New York and Toronto.)

(The American and Canadian flags symbolize friendship between the two countires. Lately, however, that friendship has taken a bit of a beating. Recently Canadian Prime Ministr Justin Trudeau grudgingly signed the USMCA agreement while expressing hope U.S. tarrifs on steel and aluminun will be lifted. Now it appears that Canadians may be hurt by a change in American immigration priorities related to green cards for skilled workers. Photo Credit: GettyGETTY)

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