The Fairness for High-Skilled Immigrants Act Remains Unfair; Better Options Exist

Last year, we wrote extensively about the unfairness of the “Fairness for High-Skilled Immigration Act.” The bill’s title comes from the premise that the current immigration system with caps on immigration from individual countries is unfair to applicants from China and India that are waiting for their chance to come to America. A limited number of people are allowed to emigrate to the United States in a year, and per-country caps make sure that no one or two countries dominate immigration. Last August, we wrote:

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 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 nationals each year during that time, the profile of employment-based immigration could change drastically for decades to come.  

The Fairness for High-Skilled Immigration Act passed the House, but on September 18, 2019, Senator David Perdue blocked the Senate version of the bill (S. 386) from getting to the floor for a vote. According to a spokesperson, Perdue believed, “The legislation in its current form will negatively impact rural health care in Georgia and across the country,” and that he “plans to work with his colleagues to ensure these concerns are addressed in the final product.”

This issue puts us in the odd spot of being on the same side of an issue with some people we rarely agree with. There are Republicans who remain allergic to immigration in all its forms who oppose this act, and those like Perdue who don’t have a problem with fixing one imbalance with another as long as it works for his constituents. We can now break with some of those uneasy allies because on February 28, a revised Fairness for High-Skilled Immigration Act has been submitted, and it still doesn’t address what we see as the fundamental problems. 

The revised act includes an amendment from Perdue that calls for 4,400 visas to be set aside for “shortage occupations” including health care professionals in underserved regions, and it tweaks some other key provisions. It prohibits companies that employ more than 50 employees from bringing more than 50 percent of them into the country on an H-1B visa, but it delays that prohibition for three years. That would allow the backlog to grow for three more years, and that backlog will affect work-based immigration in the future. 

The most problematic change is the elimination of a Do No Harm clause, which previously ensured that those who had an approved Employment Based immigrant visa petition would not be adversely affected by the changes. It made sure that applicants with approved petitions would not have to wait any additional time to receive their visa because of the change, and that provision is stripped away. Because of the timetables associated with individual visas, applicants who had successfully petitioned for an EB visa could face unwarranted and lengthy delays.

We join the American Immigration Lawyers Association (AILA) in calling for the adoption of the Resolving Extended Limbo for Immigrant Employees and Families Act (S. 2603/H.R. 5327) or RELIEF Act. It addresses some of the same backlog concerns, but it also calls for the elimination of the per-country caps and it would exempt spouses and minor children of an applicant from immigration visa quotas. 

It’s not clear that these changes will get the act to a vote, particularly in an election year. “American First” Conservatives have issues with work-based immigration in general, and President Trump’s base has been reliably activated by their opposition to immigration. Still, those who want to get involved and make their voice heard can let their senators know that they oppose the Fairness for High-Skilled Immigrants Act and prefer the RELIEF Act. 

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