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

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Overview of the Fairness for High-Skilled Immigrants Act

The Problem and the Proposed Solution

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.

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The Impact on Employment-Based Immigration

Crippling the Current System

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.

Current Immigration Quotas

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.

The 7% Per-Country Cap

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.

Silicon Valley’s Role

Immigrant Workforce in 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.

Corporate Backing of H.R. 1044

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.

Unintended Consequences

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.

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The Long-Term Consequences

“Do No Harm” Provision

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. However, 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.

Alignment with Trump’s Immigration Agenda

This law 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.

Increased Wait Times for All

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.

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A Better Alternative: The Believe Act

Senator Rand Paul’s Solution

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 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. This would solve the problem for Chinese and Indian workers without punishing workers from other countries.

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The Need for Holistic Immigration Reform

The Complexity of Immigration Law

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 backlogs.

The Importance of Immigrants from All Nations

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.

A Call for Fairness

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