Bloomberg Law
Aug. 6, 2019, 8:00 AM

INSIGHT: There’s Nothing Fair About the High-Skilled Fairness Act

Amy Maldonado
Amy Maldonado
Law Office of Amy Maldonado
Karin  Wolman
Karin Wolman
Law Office of Karin Wolman
Chris Richardson
Chris Richardson
Cooper Richardson PA
Ksenia Maiorova
Ksenia Maiorova
Maiorova Law Group PLLC

On July 10, the House quietly passed H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019, a well-intentioned piece of bipartisan legislation aimed at resolving a legitimate problem: a decades-long backlog in the issuance of employment-based green cards for citizens of China and India.

Backed by the Silicon Valley lobby, the bill proposes to lift the existing 7% per-country caps on green card issuance. While this may seem, at first blush, like a reasonable solution, the actual result of the legislation would be to create multi-year backlogs for nationals of other countries, limiting most employment-based immigration for several years primarily to nationals of India and China.

This could, in effect, cripple our current employment-based immigration system and it would be done not by President Donald Trump or Stephen Miller, but by a bipartisan coalition of Republicans and Democrats.

The Immigration and Nationality Act (INA) currently allows for 140,000 foreign nationals each year to permanently immigrate to the United States. These much-needed immigrants contribute to American society and often represent persons of extraordinary ability, outstanding professors and researchers, multinational managers or executives, people whose employment is in the “national interest,” skilled workers, and even unskilled workers to fill jobs.

Given the unemployment rate in the United States and our aging population, America will need more of these foreign nationals, not less. However, the INA states that immigrants from any one country can claim no more than 7% of the 140,000 employment-based green cards each year, meaning that immigrants from larger countries such as India and China must wait decades longer to receive their green cards while immigrants from the rest of the world have no wait for visas.

By one estimate, Indians applying for certain employment-based green cards would have to wait 150 years to receive their green card.

Enter Silicon Valley

Close to 71 percent of the workforce in Silicon Valley are immigrants, and the vast majority are Indian who come on the H-1B visa. These companies are understandably frustrated by the slow pace of green cards for Indian nationals.

In response, big name companies such as Amazon, Intel, Hewlett-Packard, IBM, Microsoft, and business groups that all rely on Indian workers drafted this legislation that, they believe, will fix their problems in the short term but at the expense of everyone else.

The bill also has unintended consequences for these companies’ own employees, such as the end of three-year H-1B extensions (triggered by the per country backlogs) under section 104(c) of the American Competitiveness in the 21st Century Act.

Their bill does have a “do no harm” provision to protect everyone currently waiting for green cards and it will be phased in over a three-year period, but ultimately, Indian nationals who once only received 7% of employment based green cards will now receive the vast majority and American employers who are seeing critical shortages will pay the price.

This law though would fit neatly into President Trump’s agenda which has included the Travel Ban, a proposed asylum ban, crippling our immigration courts, and increasing administrative and procedural backlogs against legal immigrants by ensuring that everyone would have an unreasonably long wait for green cards.

According to Daniel Costa, director of Immigration Law and Policy Research at the Economic Policy Institute in Washington, D.C., the wait times for everyone—including Indians and Chinese—will even out to be a seven or eight year wait for employment visas.

Most employers are not going to wait seven or eight years for an employee and will abandon these applicants. Jobs will remain unfilled, America will lose talent to Canada and Europe, and Stephen Miller and Trump will accomplish their goal of keeping immigrants out of the United States with the help of their unexpected allies—the Democrats.

A Better Piece of Legislation

There is a better way. The Believe Act, an alternative solution to the Chinese and Indian backlog, suggests that its sponsor, Sen. Rand Paul (R-Ky.), understands the unintended consequences of H.R. 1044.

Paul’s solution, which involves increasing the number of green cards annually and a combination of measures from not counting spouses and children of the immigrant against the cap to providing transitional status and employment authorization to those in line for a green card, would solve the problem for Chinese and Indian workers without punishing workers from other countries.

New legislation does not happen in a vacuum, and H.R. 1044 is an example of the chaos that can ensue when legislators, while guided by the best of intentions, are not sufficiently knowledgeable about the complexities of the INA, and how new legislation would interact with existing law and existing backlogs.

We need immigrants in Silicon Valley and everywhere else in America and we need immigrants from all nations—large and small. Yet the support and drafting of this bill—which does not include increases in the current limitations—demonstrates our failure to deal holistically with our immigration issues.

Appeasing one section of the country to the significant detriment of all others though is wrong, especially when better alternatives are before Congress.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Amy Maldonado is recognized as a national expert on issues in immigration law and her area of practice concentration is business immigration (employment-based immigrant and nonimmigrant visa petitions) for professionals.

Karin Wolman is a sole practitioner in New Yorik with over 20 years of experience handling employment-based immigration matters for individuals and organizations of all sizes.

Chris Richardson is a former U.S. diplomat and immigration attorney with Cooper RIchardson PA who specializes in employment-based immigration.

Ksenia Maiorova is an award-winning immigration attorney in Orlando, Fla., who dedicates a substantial portion of her practice to employment-based visas and green cards for professional athletes and coaches.

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