What are the Implications of the “Fairness for High-Skilled Immigrants Act of 2019” (H.R.1044/S.386)?
(To read more about this topic visit Support Alliance of US Immigrants)
Talk of the “Fairness for High-Skilled Immigrants Act of 2019” (H.R.1044/S.386) has been going around in immigration circles for quite some time, especially in the past few days that saw the passage of the bill without any hearings and through suspension of House rules by a vote of 365–65. While the original bill was introduced 8 years ago and it will make significant changes to the employment-based immigration system, there has not been much discussion about it, let alone hearings in Congress. In light of this, I will look at this bill in detail, what it is, what its implications are, how it can be improved, and what can be done about it.
Before we start though, a few things. First, I oppose this bill, as will be explained later. Second, I am not an immigration expert. I am just a guy who happens to be good with numbers. With that out of the way, let’s start.
What is H.R.1044/S.386?
Before talking about H.R.1044/S.386, it is important to know a bit about the employment-based immigration system.
The Immigration Act of 1990 allocates 140,000 green cards per fiscal year for employment-based immigration. The applicants are divided into five different categories:
- EB-1: This category includes people with extraordinary abilities in the sciences, art, education, business, or athletics; outstanding professors and researchers; and some multinational business executives. This category gets 28.6% (or 40,040) of the total number of green cards plus unused EB-4 and EB-5 green cards.
- EB-2: This category includes people who hold advanced degrees (Ph.D., Master’s, or equivalent) or a bachelor’s degree with 5 years of work experience in the field; people with exceptional abilities in the sciences, arts, or business; and individuals whose admission is in the national interest of the U.S. This category gets 28.6% (or 40,040) of the total number of green cards, plus unused EB-1 green cards.
- EB-3: This category includes skilled and unskilled shortage workers (for jobs that qualified U.S. workers are not available) and professionals holding a bachelor’s degree. This category also gets 28.6% (or 40,040) of the total number of green cards, plus unused EB-1 and EB-2 green cards.
- EB-4: This category is for special immigrants, including religious workers, ministers, and U.S. government workers abroad. This category gets 7.1% (or 9,940) of the total number of green cards.
- EB-5: This category includes immigrant investors who invest $1 million ($500 thousand in rural and high unemployment areas) in a new business that creates at least 10 jobs.
Spouses and minor children of each principal applicant are counted toward the limit in each category.
Current law states that for each category, applicants from each country cannot receive more than 7% of the total number of available green cards in that category each year. This part of the law is where the story begins. The original intention was to promote diversity among the immigrating workforce, which is shown to increase productivity. However, if you are born in a country where a large number of people apply for an employment-based green card every year, you have to wait in line for a long time before you can get a green card. Today that is the case with India and to a lesser extent China. This is called the “backlog”.
UPDATE. The numbers you are about to see below are from early 2018. Though a little outdated, they still paint a good picture of the situation unless there are significant changes to the employment-based immigration system. You can visit here for more recent numbers. ENDof UPDATE.
Table 1 shows the number of people waiting in the backlog according to US Citizenship and Immigration Services (USCIS) for each green card category, that is, people who are already in the U.S. applying for an employment-based green card. Table 2 shows the number of people waiting in backlog according to the Department of State (DOS) for each green card category, that is, people who are outside the U.S. applying for an employment-based green card¹. As can be seen, the EB-2 category has an especially long backlog, with 479,152 (466,602 + 12,650) people waiting in line for a green card. All of these people are from India and China, as can be seen from Table 2 and Table 3.
Let’s dig in a little deeper. Based on DOS data¹ in December 2018, the priority date for the EB-2 category for applicants from China was 7/1/15 and for applicants from India was 4/1/09. That is, if you are from India and applied for a green card before April 2009, now it is your turn to get a green card, which is equivalent to a ten-year wait. Based on the current numbers in Tables 1-3, if you are from India and you apply for a green card today, you will become eligible for one some time probably in the next century. That is where H.R.1044/S.386 comes in.
The main function of H.R.1044/S.386 is to eliminate the 7% country cap. That is, in each category all of the green cards will become available to everyone eligible for that category (with an approved petition), regardless of the country of origin.
What are the implications?
The immediate result of enacting this bill is obvious. Lifting the country caps means green cards in each category will be distributed on a first-come-first-serve basis. That is, in each category green cards are first given to the people who have been backlogged and then to everyone regardless of their country of origin. There is a brief transition period, which I will talk about later on.
This is good news for people who are already in the backlog. As was mentioned previously, some people have been waiting for their green cards for a decade, and some, especially those working for outsourcing companies, have faced hardships. Backlogged H-1B workers are tied to the employer that sponsors them for a green card and cannot leave their jobs without risking their status. Some backlogged H-1B workers have children that are past the age of 21 and have lost their status, having to scramble to find another visa to stay in the U.S. Some people have not been able to return home and attend a wedding or a funeral, or simply see their family. I am sympathetic to that. Believe me, I am from Iran.
However, there is a catch. Backlogged people who got in the green card wait line more recently may still have to wait a long time before getting one. Let me give you an example. Assume that a person from India applies for a green card in the EB-2 category around May 2018 (roughly the same time as the data in Table 1 & 3). Assume further that the bill became law at that same time. Based on data from Table 1 & 2 there are 479,252 people in the backlog before this person. Given that each year only 40,040 green cards are available in the EB-2 category, and accounting for the transition period, this person has to wait 12.3 years before getting his green card². For those who keep count, that is September 2030 (assuming we have not melted the planet by then). For someone in the backlog, this is better than getting a green card after the year 2100 — which should probably be given to a corpse by then — but it does not solve any of the problems I previously mentioned that people in the backlog face. They will still be tied to the employer that sponsors them, children will age out of their status, etc.
Given that the majority of the people in the backlog have either a Bachelor’s degree or a Master’s degree and they can apply to either the EB-2 or EB-3 category (people with a Master’s degree are eligible for the EB-3 category because of their Bachelor’s degree and people with a Bachelor’s degree and five years of work experience are eligible for the EB-2 category) ideally the wait times would equalize. With that assumption, knowing that the total number of people in the backlog for the EB-2 category is 479,152 and for the EB-3 category is 169,563¹, the total number of people in the backlog is 648,815. Accounting for the transition period², that yields a wait time of 8.5 years. For those who keep count, that is November 2026.
This bill also establishes a transition period. Assuming the bill was enacted at the start of the fiscal year 2019, 15% of green cards in the EB-2 and EB-3 categories are reserved for people not from the two countries with the highest volumes of such green cards in that year. For fiscal years 2020 and 2021 that rate drops to 10%, and that’s it.
Given that it takes at least 8.5 years (or more, the estimate above was based on 2018 data and ideal assumptions) to clear the backlog in the EB-2 and EB-3 categories, the transition period described in the bill is problematic too. Let me give you another example. Assume two brothers, José and Andrés, came to the U.S. from Spain on H-1B visas, and then their employers sponsored them to apply for a green card. Because José applied one month earlier, he made the transition period cut and got his green card in 2021, while Andrés, who did not make the cut, has to wait till 2027 to get a green card. Let’s just say Andrés is going to have a lot of angry feelings toward José.
These issues are indicative of a larger problem, and that is the fact that this bill does not solve the backlog problem. It merely shifts the problem. From a system that does not work for people of a few countries (India and to a lesser extent China), this bill creates a system that does not work for people of any country.
Consider the EB-2 and EB-3 categories, currently the ones with the most backlog. As was shown before, it takes at least 8.5 years to clear the current backlog, and since this bill does not add any new green cards nor does it stop new people from applying for one, the backlog will stay in place and increase over time. Indian/Chinese nationals already receive more than 7% of the green cards in the EB-1 to EB-3 categories because of unused green cards from other countries, so the problem is not the country caps. The problem is the inadequate and outdated number of available green cards, so this bill does not solve ANYTHING. The only difference removing the country caps makes is that this time the backlog does not consist only of people from India and China. This means that for people who apply for a green card in 2019, the soonest they will see a green card is around 2028. So what is wrong with that? A few things, apparently.
First, it puts an end to the ability of American companies to sponsor foreign nationals (who are presumably experts in a field) for a green card, since no company would see it logical to sponsor someone who will start working 8.5 years in the future. So that British financial analyst, that German auto industry expert, that South African water management specialist, say goodbye to all that.
If this bill becomes law, the only way high-skilled foreign nationals can come to or stay in the U.S. (if they are students) and work is through the H-1B program. Currently, USCIS issues 85,000 new H-1B visas to high-skilled foreign nationals seeking occupations subject to the cap (20,000 reserved for U.S. graduates with advanced degrees and 65,000 for the rest of applicants, assigned through a lottery system), and several thousand to those who are cap-exempt (people working in universities, hospitals, non-profit research organizations, etc.). Rounding these numbers, each year an average of 100,000 new H-1B visas are handed out. Considering a 1.0 family member multiplier (holding H4 visa, consistent with the Congressional Research Service (CRS) report¹), each year around 200,000 new people will be added to the list of those eligible for a green card in the EB-2 or EB-3 categories. This number is around 2.5 times the total number of annual green cards available in these categories combined!
To understand the impact of this bill and how the backlog will change over time, let’s talk numbers. Take a look at Table 4.
The second row of Table 4 shows the total number of approved I-140 petitions for all three categories combined in each fiscal year from 2012 to 2018. The second row shows the total number of EB-1 green cards in each fiscal year. Knowing that the backlog for the EB-1 category in the fiscal year 2011 was zero, as evidenced from the fact that the unused green cards were given to applicants in the EB-2 category, the 59,661 principal applicants in the backlog in the EB-1 category have applied for a green card starting from the fiscal year 2012. This means that on average, each year 8,523 principal applicants have been added to the backlog in the EB-1 category in the past 7 years. Based on this information, and using a family multiplier of 1.4¹, we can derive an estimate of the total number of principal applicants in the EB-1 category in each fiscal year as shown in the fourth row (using the formula fourth row = second row / (1.4 + 1) + 8,523). Finally, subtracting that number from the total number of approved I-140 petitions gives us an estimate of the total number of principal applicants in the EB-2 and EB-3 categories combined.
To understand how the backlog will change by enacting this bill, assume that the bill was enacted at the start of the fiscal year 2019. As we established before, there are 648,815 people in the backlog in the EB-2 and EB-3 categories combined, which means an initial wait time of 8.5 years. Assuming an abandonment rate (rate of people with approved I-140 that leave the country) of 4.75% (see here) denoted by y and a family multiplier of 1.0¹ denoted by z, we can calculate the total number of people in the backlog in these two categories for fiscal year n+1 based on the number of people in the backlog in fiscal year n using the formula
Here, x_n is the number of people in the backlog in year n and t_n is the number of new principal applicants in the two categories combined in year n.
First, let’s take a less conservative approach and assume that in the next 22 years (until 2040), the average number of principal applicants in the EB-2 and EB-3 categories combined is the same as the average number of applicants in these two categories from 2012 to 2018, or roughly 74,559. In this case, as shown in the chart below, in 2030 and 2040 the number of people in the backlog rises to 1,004,718 and 1,177,616, respectively, which is equivalent to a wait time of around 12.5 years in 2030 and 14.7 years in 2040. Here, the abandonment rate would have to be 10.64% just for the number of people in the backlog to remain constant.
Next, let’s take a conservative approach and assume that in the next 22 years (until 2040), the average number of principal applicants in the EB-2 and EB-3 categories combined is the same as the average number of applicants in these two categories from 2016 to 2018 — that has seen an uptick in the number of applicants — or roughly 93,831 (assuming the backlog in the EB-1 category only formed during these three years). In this case, as shown in the chart below, in 2030 and 2040 the number of people in the backlog rises to 1,363,646 and 1,710,910, respectively, which is equivalent to a wait time of around 17 years in 2030 and 21.4 years in 2040. Here, the abandonment rate would have to be 16.58% just for the number of people in the backlog to remain constant. Think about it for a moment, each year around a sixth of people in the backlog would have to leave the country just so the wait time stays the same. This is simply unsustainable.
Let’s look at it through the lens of international students in the U.S. If they plan on staying in the U.S. after graduation and apply for work (as many do), they essentially face two options, either the Optional Practical Training (OPT) program or the H-1B program. Apart from the fact that H-1B visas are handed out by a ridiculous lottery system, these people will face a backlog of at least 8.5 years before becoming a U.S. resident. Faced with this prospect, many will choose to leave the U.S. and find work elsewhere, either their home country, or those countries welcoming high-skilled immigrants with a U.S. education (apparently there is this country to the north with universal healthcare and no mass shootings called Canada, I wonder if anyone has heard of them). This is a lose-lose situation. These people lose because they leave behind a competitive environment and the professional network they curated over the years, and the U.S. loses all the investment it made in training these people. When the time comes to take the fruits of that investment, these people are gone. They migrate to other countries that are either economic competitors of the U.S. or outright its adversaries. This is just nonsensical.
Another side effect concerns prospective students. A 2015 survey found that around 74% of international graduate students cited future career opportunities as one of the main influences for seeking a U.S. education. An 8.5 year and counting backlog (and a stable genius at the helm) for getting a green card discourages many prospective students from coming to the U.S. and instead encourages them to apply to top universities in other countries including Canada, the U.K., Singapore, Japan, and Australia. Apart from the fact that this diminishes America’s ability to attract the brightest minds in the world to conduct research and make scientific discoveries and technological advances, America loses out on the $39 billion international students bring in every year and the 455,000 jobs that money supports. It can also be damaging to U.S. national security.
What?
Let me explain³. A large number of international students in the U.S. who go back to their home country will eventually assume leadership positions, not just in politics but in business and arts as well. People like Kofi Annan, former Secretary-General of the UN; Benazir Bhutto, former Prime Minister of Pakistan; and Vicente Fox, former President of Mexico; are good examples of those who studied in the U.S. and later on became political leaders. Because these people have studied in the U.S. and are familiar with American culture and values, they are more likely to negotiate with, trust, and enter in agreements with U.S. companies or the U.S. government, and this helps the U.S. soft power. Simply put, the U.S. would not benefit from a Chinese, Saudi, or Nigerian leader with a dim view of American culture and values.
Consider my home country of Iran for example. Leading up to the Joint Comprehensive Plan of Action (JCPOA), then Secretary of State John Kerry and Secretary of Energy Ernest Moniz spent a lot of time negotiating with their counterparts, Iran’s Foreign Minister Mohammad Javad Zarif and head of Atomic Energy Organization of Iran, Ali Akbar Salehi. Zarif got his Ph.D. in international law and policy from the University of Denver and Salehi got his Ph.D. in nuclear engineering from MIT. One of the reasons the negotiations were successful was because the two sides were familiar with each other and each other’s values and that facilitated dialogue and resulted in a successful agreement.
The second problem with H.R.1044/S.386 is about the potential effect it will have on the diversity of employment-based applicant pool and its monopolization by a single country, and consequences for American workers in certain sectors of the economy. While this is not certain, part of the conclusion of the CRS report on this issue reads¹:
Other outcomes may also result from eliminating the per-country ceiling, apart from reducing certain queues of prospective immigrants more quickly, and removing the perceived employer incentive to choose nationals from these countries over other countries. For example, shorter wait times for LPR [Legal Permanent Resident] status might actually incentivize greater numbers of nationals from India, China, and the Philippines to seek employment-based LPR status. If that were to occur, the reduction in the number of approved petitions pending might be short-lived. In addition, absent a per-country ceiling, a handful of countries could conceivably dominate employment-based immigration, possibly benefitting certain industries that employ foreign workers from those countries, at the expense of foreign workers from other countries and other industries that might employ them.
In addition, because the INA [Immigration and Nationalities Act] grants LPRs the ability to sponsor family members through its family-sponsorship provisions, removing the per-country ceiling would alter, to an unknown extent, the country-of-origin composition of subsequent family-based immigrants acquiring LPR status each year.
A look at the employment-based green cards issued in the fiscal year 2018 shows the three countries with the largest number of green cards received were India (22,524, 16.14%), China and Taiwan (21,188, 15.19%), and South Korea (10,684, 7.66%). These numbers show that under the current system, the distribution of green cards is roughly proportional to a country’s population. A more detailed look at the number of green cards received by Indian nationals shows that they received 10,967 (27.75%), 4,096 (10.08%), and 6,112 (16.55%) of the total number of green cards in the EB-1, EB-2, and EB-3 categories, respectively.
Several people have criticized the H-1B program and outsourcing companies for being the root cause of this backlog and for undercutting American workers. I do think that is true and these companies are to blame for the current situation, but I also think the people who are stuck in the backlog need to be taken care of. Smart policy (definitely not this bill) would both give a path to permanent residency for people in the backlog and prevent future H-1B abuse.
UPDATE. An amendment to the bill by Sen. Chuck Grassley (seems to) strengthen Department of Labor’s hand in monitoring H-1B hirings and combating H-1B fraud. The Trump Adminstration is also cracking down on these hirings, especially by outsourcing companies, on a big scale.
ENDofUPDATE.
The H-1B program and H-1B abuse have been the subject of extensive reporting. For those who want more information, I leave you with a PBS documentary about this issue, H-1B and green card statistics from USCIS, and some articles from people who are much smarter than I am.
Boeing’s 737 Max Software Outsourced to $9-an-Hour Engineers
The third problem with H.R.1044/S.386 — unlike some supporters may suggest — is that it hardly moves the needle when it comes to creating a merit-based immigration system for foreign workers. It may remove nationality as a factor in recruitment among employers and that is a good thing — though there is not much evidence to support the claim that companies do discriminate based on nationality and even if so, which way — but the resulting first-come-first-serve system is far from being merit-based. This is especially true in the EB-2 category that lumps together everyone from a Ph.D. to a bachelor with 5 years of work experience.
Let me give you an example. Consider Leon, who was born in Cuba, as an example. Leon came to the U.S. on an F1 student visa after finishing high school to attend the University of Pennsylvania. He received a bachelor’s degree in computer science and went on to Yale University to get his Master’s and Ph.D. degrees in computer science. Leon started working for a company in the U.S. using an H-1B visa and after some time, his company sponsored him for a green card in the EB-2 category.
Now consider Leonard, who was also born in Cuba. Leonard got a bachelor’s degree in computer science from the University of Guantánamo and started looking for work. He was hired by the company Capgemini and relocated to the U.S. After five years, Capgemini sponsored him for a green card in the EB-2 category.
In the example above, Leon and Leonard made different life choices, have different experiences, different educations (with one clearly superior to the other) and yet ended up in the same category, with the only thing differentiating them being the time they applied for a green card. How is this merit-based?
The final problem with H.R.1044/S.386 concerns nurses. According to the Department of Labor, the U.S. is projected to experience a shortage of Registered Nurses (RNs). The solution, most agree, is to bring qualified foreign nurses to the U.S.
However, there is a catch. Foreign nurses are not considered “high-skilled” workers, so they do not qualify for an H-1B visa. Therefore, the only way these nurses can work in the U.S. is to get a green card in the EB-3 category. If H.R.1044/S.386 is passed, it takes at least 8.5 years to clear the current backlog and new applicants must wait this same amount of time (if not longer) to get a green card. This can really screw things up. Don’t take my word for it though, both the American Hospitals Association (AHA) and LeadingAge (representing the entire field of aging services) have come out against this bill (technically the one in the previous Congress called the “Yoder Amendment” or H.R.392/S.281 in the 115th Congress). In it’s letter to the members of Congress, the AHA mentions
Eliminating the per-country cap for immigrant visas would have a crippling effect on hospitals and health systems because foreign-trained nurses entering the U.S. each year to fill critical nursing jobs would be reduced by 77 to 100 percent over the next five years and beyond. If this happens, health care for Americans would clearly suffer.
Similarly, LeadingAge states that
If passed, the Yoder amendment would nullify many of our members’ efforts to recruit essential nursing staff abroad. In view of the severe and growing shortage of nurses in this country and particularly in the long-term services and supports field, the amendment’s [H.R.1044/S.386] impact would be devastating.
You can see these statements below.
UPDATE. Sen. Rand Paul offered some changes to the text of the Senate bill to ensure a number of green cards are reserved for shortage workers for the next several years. ENDofUPDATE.
Let’s recap. Passing H.R.1044/S.386 only shifts and most likely worsens the backlog problem for every foreign worker, stifles diversity in the employment-based green card applicant pool, does not move the U.S. toward merit-based immigration in any meaningful way, and spells disaster for the U.S. healthcare system. You are probably thinking I am opposed to lifting the country caps whatsoever, right?
Wrong.
Seriously, what is wrong with you?!
As I have said before, I am opposed to Just lifting the country caps, as it has much more unintended and disastrous consequences than the relief it provides to people currently in the backlog. However, coupled with other measures, which I will explain in the next section, lifting the country caps can actually be a good thing.
This position, however, does not sit well with some people, most notable among them Leon Fresco, lawyer/lobbyist for Immigration Voice, a group that advocates for people currently in the backlog (if you watched the video above you have seen them). According to Mr. Fresco:
UPDATE. There used to be tweets of Leon Fresco here calling opponents of H.R.1044/S.386 “ethno-racist” and “for-profit racist”. Because he later deleted those tweets I am only showing the texts here:
“The backlogged community is not asking for special treatment, they are asking for equal treatment. The bill even says in plain English now that no one currently in line can go backwards! Anyone who opposes #greencardequality now is a “for-profit racist” or an “ethno-racist”.” @FrescoLeon
“To be clear, anyone who opposes #greencardequality now is either an ethno-racist or a for-profit-racist. Either way, there is no argument left as to why future unknown people should be given special treatment over actual human beings whose kids are about to age-out! Shame!!” @FrescoLeon ENDofUPDATE.
What he says is just wrong. This is disappointing coming from someone who was Sen. Schumer’s immigration aide that negotiated the “Gang of Eight”’s “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013” (S.744), the 2013 immigration reform bill that passed the Senate but eventually died in the House⁴. Just because people think that a proposed solution does not effectively solve a problem and screws up a lot of things further down the road does not mean they are profiting off of or enjoying the hardships other people face.
Here is an analogy. If your couch is on fire, Mr. Fresco’s approach would be analogous to jumping in an excavator and demolishing the house and calling everyone who objects an arsonist. Sure, that is one way of doing it, and it may put out the couch fire, but if you go that route you have bigger problems to worry about.
Yet another analogy is the Iraq War (which by now is THE textbook example for unintended consequences). Mr. Fresco’s approach is analogous to advocating for the removal of Saddam by all means necessary and calling anyone who objects a murderous dictator sympathizer. Removing Saddam was a good thing, but we all know how it went from there.
All I am saying is this: just because a proposed solution solves a problem, we should not ignore all its costs and problems it creates, and advocate for it just as long as it solves that one particular problem we are interested in. Instead, we should all be striving to find a solution that effectively solves the problem and actually improves the system.
What are Some Ways to Improve This Situation?
Up till now, I have listed all the problems that lifting the per-country caps would create. However, as I have said before, together with the right policies lifting the country caps can actually be a good thing. A National Academy of Sciences (NAS) report in 2016 estimated that the lifetime net present value of the average immigrant with a college degree to all levels of government was between $210,000 and $345,000. For those with more than a bachelor’s degree, the NAS estimate was between $427,000 and $654,000. So whether you are a Democrat or a Republican, you should agree that high-skilled, merit-based immigration at a time when the unemployment rate is historically low and there are more jobs available than people who can fill them, helps the economy and benefits all U.S. citizens. To achieve that goal, here are a few suggestions:
(i) Increase the number of employment-based green cards.
The number of employment-based green cards was set at 140,000 in 1990 and has not changed ever since. In the meantime, the size of the U.S. economy has more than tripled, the technology sector that was in its infancy back then is now a booming industry, and companies like Google, Amazon, and Facebook that did not exist back then are worth more than the economy of entire countries. Increasing the number of green cards for high-skilled immigrants ensures the U.S. continues to attract the best and brightest talents in the world that can build businesses, create jobs, and help move the economy forward.
(ii) Exempt spouses and minor children from the numerical limits.
It is just ridiculous to count dependents of the principal applicant towards the employment-based caps in each category. As long as the applicant has the experience and skills that qualify them for a green card, it should not matter whether that applicant is single or whether he/she is married and has five children. Similar to nationality, familial status should not be considered a merit.
(iii) Exempt shortage occupations listed by the Department of Labor from the numerical limits.
Supply must match the demand, it is as simple as that. If there is a shortage of nurses, for example, it is just stupid to have foreign nurses wait or try to make it harder for them to come here.
(iv) Exempt people with approved NIW petitions and those in the EB-1 category from the numerical limits.
For applicants with approved NIW petitions or in the EB-1 category, it is literally in the national interest of the U.S. that they become residents because they have exceptional ability and whose employment in the U.S. would greatly benefit the nation. Why would you want to keep them waiting?
(v) Reform the employment-based green card categories, especially the EB-2 category.
Assessing the abilities of an individual based on factors such as skills, education, language ability, work experience, and other factors (as was proposed in the 2013 immigration reform bill) instead of lumping everyone from a Ph.D. to a bachelor with a 5-year experience can help transition the U.S. toward a more merit-based immigration system.
(vi) Reform the H-1B visa system.
The H-1B program is notorious for its lax work requirements. Here is an example. If a company wants to hire foreign nationals using H-1B visas, it has to prove that no qualified American is available for the job. However, this requirement is waived if the salary offered to the foreign national is at least $60,000. Since 1990 that the law was enacted a lot of things have changed, but this limit has stayed the same and that is just ridiculous because $60,000 in 1990 is not worth the same as $60,000 today. Because of inflation, $60,000 in 1990 is worth $117,586.86 in today’s dollar, which is nearly twice as much.
Take a look at this graph:
Based on this outdated law, most of these companies do not have to prove they looked for Americans first before hiring foreign nationals because they offered them more than $60,000. However, if you consider the equivalent value of $106,942.77 in 2013, most of these companies (apart from Amazon, Microsoft, Google, Apple, and perhaps Intel) would not qualify for this exemption.
A simple fix to the law would be to take inflation into account. In fact, Rep. Zoe Lofgren, the principal sponsor of H.R.1044 introduced the “High-Skilled Integrity and Fairness Act of 2017” that would set wage standards for the H-1B program and also removed the per-country caps for employment-based green cards. In her press release she said:
The High-Skilled Integrity and Fairness Act of 2017 would curtail abuse of the program which has allowed replacement of American workers by outsourcing companies with cheaper H-1B workers. In several recent incidences, high-profile U.S. employers including Disney, Southern California Edison, and most recently the University of California San Francisco, have made news in this manner.
“My legislation refocuses the H-1B program to its original intent — to seek out and find the best and brightest from around the world, and to supplement the U.S. workforce with talented, highly-paid, and highly-skilled workers who help create jobs here in America, not replace them,” said Lofgren. “It offers a market-based solution that gives priority to those companies willing to pay the most. This ensures American employers have access to the talent they need, while removing incentives for companies to undercut American wages and outsource jobs.”
The High-Skilled Integrity and Fairness Act of 2017 prioritizes market based allocation of visas to those companies willing to pay 200% of a wage calculated by survey, eliminates the category of lowest pay, and raises the salary level at which H-1B dependent employer are exempt from nondisplacement and recruitment attestation requirements to greater than $130,000.
I guess the powers of outsourcing did not like this bill very much and removing the country caps was all that remained of this legislation. What a small world we live in.
Other reforms can also be made to the H-1B program, including providing employment authorization to spouses of H-1B workers, adding protections for those who want to leave the employer that sponsored them for a green card, and protections for children of H-1B workers that age out.
A bit of good news is that while I was writing this, Sen. Rand Paul introduced the “Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act” (seriously!). This bill constitutes some of the measures introduced above as well as some others, including:
- Ends the per-country limits on green cards for employment-based immigration;
- increases the limit on green cards for employment-based immigrants from 140,000 to 270,000;
- exempts spouses and minor children of employment-based immigrants from numerical limits;
- exempts shortage occupations from numerical limits;
- creates an uncapped green card category for children of legal temporary workers;
- provides employment authorization to spouses and minor children of temporary workers;
- provides employment authorization and legal status while waiting for a green card.
For those of you keeping count, by doubling the number of green cards and exempting spouses and minor children from the limit, this bill increases the available number of green cards by nearly four-fold. One result is that the current backlog in the EB-2 and EB-3 categories can be cleared in roughly 2 years (instead of 8.5) or sooner, depending on the immigration flow of the EB-1 category. Another result is that it prevents employers of H-1B workers from exploiting them. I prefer if some form of H-1B wage reform was attached to it as well, but overall it is a good first step and alleviates most, if not all, of the problems associated with H.R.1044/S.386.
UPDATE. While the BELIEVE Act went nowhere, Sen. Dick Durbin recently introduced the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act which aims to address the backlog of both employment- and family-based green cards by increasing the number of available green cards. It also has several co-sponsors. You learn more about it here. ENDofUPDATE.
What Can be Done About This?
There are many ways that you can help make sure the outcome of this situation is one that helps everybody, people in the backlog, immigrants from other nations, and the U.S. as a whole.
(i) Inform.
If you have been reading up to this point I guess you have a clear understanding of what the consequences of this bill are and how disastrous it is. So, the most simple thing you can do is talk to your friends about this and let them know about the implications of this bill. You can also inform a larger audience by talking about this on social media.
Arm yourself with the facts and know the data to back them up, as I have done in this article. There is nothing worse than a misinformed public. Sadly it seems, that is what the supporters of this bill are banking on. In the last Congress, they tried to sneak this bill into the Department of Homeland Security’s budget as an amendment and this Congress they rammed it through the House without a single hearing. My guess is they do not want the public to know what a disaster this bill is.
(ii) Contact your senators. They need to hear from you.
If you are a U.S. citizen or permanent resident, you can call your senator at (202) 224–3121 and let them know that you oppose this bill because of the damage it does to the U.S. economy, healthcare system, and America’s ability to attract the best and brightest minds in the world. If your senator is a co-sponsor of this bill, tell them you want them to reconsider co-sponsoring this bill, and if they want to sponsor something they can sponsor Sen. Paul’s BELIEVE Act (UPDATE. or Sen. Durbin’s RELIEF Act ENDofUPDATE.). The Senate is in a recess in August, so it gives you and your friends a chance to attend a town hall your senator holds and voice your opposition there.
If you are in the U.S. on a non-immigrant visa hoping to get a green card someday, here are a few things you can do:
- Get in touch with the organization advocating on behalf of people with roots in your country of birth in Congress. For example, if you are from South Korea you can contact organizations like Korean Americans in Action and Council of Korean Americans. Let them know about this bill and the impact it will have on your community. Ask them to advocate for opposing S.386 in the Senate.
- Gather signatures or people from your state that oppose this bill. Call your senator at (202) 224–3121 and ask for a meeting. If the senator is not available, ask for a meeting with his/her immigration aide. In the meeting, hand over the signatures you have gathered to the senator’s staff. Make sure the people that come with you tell their story, explain the consequences of this bill, and why you oppose it. Tell your senator that you want the immigration system to work for all communities and that if they are looking for an alternative, they should consider Sen. Paul’s BELIEVE Act (UPDATE. or Sen. Durbin’s RELIEF Act ENDofUPDATE.).
- If you were not able to set up a meeting, call your senator, write to them, or send them an email and let them know you oppose this bill. The senator’s staff will hear your voice and take note.
Let’s make sure the outcome of this situation is one that helps everybody.
[1]: Kandel, W. (2018). [online] Congressional Research Service (crsreports.congress.gov). Available at: https://crsreports.congress.gov/product/pdf/R/R45447 [Accessed 13 Jul. 2019].
[2]: The total number of people in the backlog from India and China is 466,602 from Table 1 in addition to 12650 from Table 2, or 479,252. Given that for people in the backlog 34,034 green cards are available the first year, 36,036 green cards are available each of the next two years (because of transition rules), and 40,040 green cards in the years after that, the amount of time it takes to clear the backlog is 12.3 years.
[3]: I first heard this argument from Ben Rhodes, a former Obama advisor, on Pod Save the World. It’s a good podcast, you should check it out.
[4]: That bill would have completely overhauled the U.S. immigration system. Among its many provisions, the bill would have exempted individuals currently classified under the EB-1 category, U.S. graduates in STEM, and physicians that had completed foreign residency requirements, from numerical limits. It would have also created a merit-based point system five years after enactment that awarded points to individuals based on their education, employment, length of residence, etc. However, some criticized the bill because the changes it made to the H-1B program seemed to incentivize outsourcing American jobs to lower-cost foreign workers.
