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The Fairness for High-Skilled Immigrants Act Is Not That Fair

[Updated] The Fairness for High-Skilled Immigrants Act of 2019 sounds like a good thing because Americans like fairness. But measures that want to make sure that fairness extends to those the system already favors—the skilled, the monied, the connected—usually aren’t as good as they sound, and that’s the case with this bill, which has passed the House. If signed into law, the Fairness for High-Skilled Immigrants Act would eliminate country caps, which again sounds good in theory, but Big Tech companies and immigrants from India and China will be the beneficiaries of the act while immigrants from the rest of the world will lose out, as will American employers that use the H-1B visa in sectors other than tech. 

The act introduced by California Democrat Zoe Lofgren and Colorado Republican Ken Buck will clear the way for the backlog of Indian and Chinese nationals looking to enter the country on employment-based visas to enter at the expense of qualified applicants from other countries. It increases the per-country cap on family-based visas from seven to 15 percent and eliminates the seven percent cap for employment-based visas. According to David North of the Center for Immigration Studies, “The bill would not lift the total number of green cards issued, but it would speed up issuances for people from nations sending us large number of immigrants, notably those from China and from India, the second and fourth largest producers of immigrants. Mexico is first, Cuba is third.” 

Since there are only 140,000 employment-based visas issued each year and approximately 1,000,000 Indian and Chinese nationals awaiting visas, the overwhelming majority of those visas will go to them, and it will take at least seven years to a decade to clear the backlog, assuming that no more Indian or Chinese nationals apply during that time. Since projections suggest that in fact more than 200,000 new visa applications will come from Indian and Chinese nations each year during that time, the profile of employment-based immigration could change drastically for decades to come.

As immigration lawyers that deal extensively with H-1Bs and employment-based immigration, these changes disturb us. These bills will eliminate the option of employment-based immigrant visas for everyone that is not an H-1B holder. In order to remain in U.S., nonimmigrants who wish to pursue a visa in the employment-based category with need to continue to extend their status for at least 7-10 years before they will be able to file their adjustment of status or obtain an immigrant visa at their consulate abroad in the employment-based first, second, and third preference categories. The only category of non-immigrant visas that has dual intent (the ability to maintain a temporary status while also seeking permanent residence in the U.S.) and is renewable beyond seven years is the H-1B. Everyone else will need to wait for years outside the United States after filing their EB Immigrant Visa petition because non-immigrant visas will no longer be renewable. Employment-based visas will no longer be available within a reasonable time to TPS, DACA, and out of status individuals who need to adjust their status, and there will be limited options for international students who find employment in the United States and want to further a career here. 

Like all things with immigration, The Fairness for High-Skilled Immigrants Act is more complicated than it seems and has a much greater impact than it would seem at first glance.  Per country limits can be viewed in both good and bad ways.  By limiting the number of individuals immigrating to the US through employment and through the more attenuated family preferences, the immigration system ensures ongoing diversity in immigration and also supports the existing overarching social identity of America.  Per country limits can also be viewed through a lens of nationalism, limiting access of the “best and brightest” a country may have to offer.  The long waits faced by nationals of India and China really aren’t fair, and they create situations that can lead to the exploitation and extortion of workers. 

The Fairness for High-Skilled Immigrants Act is a tool that tries to “fix” the backlog with a sledgehammer when a scalpel could accomplish the same result with much more fairness. There are other ways to accomplish some of the results this Act purports to accomplish in the medical sector, for instance. Instead of the proposed solution, certain occupations such as medical doctors could be exempted from the per country limitations entirely.  If lawmakers want to keep the “best and the brightest,” then exempt the first preference which requires a demonstration of extraordinary ability from the cap. If an industry is particularly harmed by the backlog, then exempt the industry or the job category or provide exemptions from the cap to employers who engage in re-education or job training at the local level—all easily done with additional filing fees. 

We could increase the total number of visas available or have a limit that is far more flexible and responsive to market demands by linking the number to the national rate of unemployment. When there is lower unemployment, there would be more employment-based immigrant visas available and thus the per-country limitations would be less of an issue.  Another solution is to change the way we count applicants. Under the current immigration process,  family members of a principal visa applicant each count against the total number of visas. If a schoolteacher has a spouse and three children, the family of five will use a total of five visas. A law could easily remove derivative family members from the visa cap and count only the principal immigrant against the cap. 

All of these are nuanced solutions that would require a true debate and discussion about immigration and how it truly fits in our national identity and our economic growth as a nation. That conversation is long overdue and, unfortunately, hard to have in our current climate.  

If this concerns you—and it should— spread the word and contact your Senators and Representatives about the potential problems created by SB 386 and HR 1044. The bills’ passage is far from certain but they have received significant bipartisan support and appear to have momentum. If you call the U.S. Capitol Switchboard at (202) 224-3121, an operator will connect you directly with your senator’s office. If you want to be positive and offer an alternative, you can ask your senator to support Rand Paul’s BELIEVE Act (S. 2091) which eliminates the caps that affect Indian and Chinese nationals but includes protections to make sure that employment-based visas are available for workers from other countries. It has other provisions that ensure that America remains true to its values and open to people from around the world who wish to contribute. We don’t agree with it entirely and would prefer to see less reactionary immigration reform, but there are other options out there.  

Updated March 10, 2020 at 10:25 a.m.

The Fairness for High-Skilled Immigrants Act has been revised. We analyzed the new version that has yet to be scheduled for a vote in the Senate and recommend supporting a better alternative.

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