Your Guide to the “Fairness for High-Skilled Immigrants Act of 2019” (H.R.1044/S.386)
(This is a shorter version of the Medium story “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, 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 that 7% of the total number of available green cards in that category in each year. This part of the law is where the story begins. 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.
Based on U.S. Citizenship and Immigration Services (USCIS) data¹, the EB-2 category has an especially long backlog, with 479,152 people waiting in line for a green card. All of these people are from India and China. 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, 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.
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. Assume further that the bill became law at that same time. Based on data from USCIS 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 card. 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 does not solve any of the problems 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 period, 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 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.
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, 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, let’s analyze the numbers. 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.
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. 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.
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.
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.
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].
