The House Votes to Remove Green Card Caps

By Greg Siskind

On July 10th, the US House of Representatives passed HR 1044, the “Fairness for High-Skilled Immigrants Act of 2019”, by a margin of 365-65. The bill’s main purpose is to address the decades-old system of per country quotas that limits distribution of green card numbers in the various employment and family green card categories to no more than 7%. Indian nationals (and to a lesser extent people from China and Vietnam) face waits much longer than other countries because of the quotas. For example, a recent analysis by the Cato Institute shows that Indian nationals can expect to wait 54 years for a green card in the employment-based second or third preference categories. More than 48,000 Indian nationals are expected to die while waiting on the lines.

The consequences for people waiting can be severe. When their children turn 21, they are no longer eligible for dependent visas and qualifying for their own visas can be extremely difficult. So many families end up separated or forced to abandon their US green card applications. People waiting on temporary work visas have less negotiating power when it comes to their salaries and work conditions. Those in the green card lines can’t retire until they get their green cards, which can be well after they are in a position to stop working. People wanting to start their own businesses also can’t do so until they finish green card processing. 

HR 1044 would phase out per country quotas in the employment-based categories and raise them from 7% to 15% in the family categories. People in line when the law is passed will be processed through to conclusion as if the law wasn’t passed and there is also a three-year transition period that does away with the quotas following that. So the real impact of the bill probably will not be seen until after five or more years.

Despite the overwhelming support in the House, the road to passage in the Senate is less clear. The companion bill in the Senate is S. 386. As of the writing of this article, the bill has 35 sponsors, including 20 Republicans and 15 Democrats. Shortly before HR 1044 passed, the bill was brought up for a unanimous consent motion on the Senate floor but failed after Senator Rand Paul (R-KY) objected. Paul asserted that the bill would hurt the recruitment of foreign nurses (though one of the groups most impacted by the quotas is the estimated 20,000 Indian physicians waiting in the EB-2 category). Paul introduced another bill that would end per country quotas and dramatically hike overall green card numbers. But many see the bill as an attempt to draw away votes from S.386 while not having a serious likelihood of passing anytime soon.

Senator Charles Grassley (R-IA) has also proposed an amendment to the bill which would change the H-1B visa program for high-skilled workers. Among the proposed changes are the following:

• The government will create a web site where employers would have to post an H-1B position for 30 days before an H-1B application can be filed. The information in the posting is the same as information already included in the Public Access File but must also include information on how to apply for a position at the employer;
• Employers would be barred from including in any advertisements that a position is limited to or prioritizes H-1B workers;
• Employers who have previously hired H-1B workers will have to provide, for a specified prior look-back period, W-2 records to verify employees were paid at least what was stated on the filed Department of Labor Condition Application forms;
• The Department of Labor will charge a fee for Labor Condition Application fees that will cover average processing and enforcement costs;
• The “B-1 in lieu of H-1B” and “B-1 in lieu of H-3” strategies for entering the US will be prohibited;
• New protections will be available to H-1B violation whistleblowers;
• USCIS will be required to share information with DOL and DOL will be provided new authority to investigate potential H-1B violations;
• DOL will be able to deny LCAs when they suspect fraud or misrepresentations and not just when there are obvious errors on the form. DOL will also have new authority open investigations regarding LCA violations if they suspect fraud.

Open questions that remain are whether Grassley’s amendment will pass and, if so, will there be changes. The language is similar to language previously supported by some Democrats including Senator Richard Durbin from Illinois. Also, if the bill passes with the H-1B language, how will Zoe Lofgren, the chair of the House Immigration Subcommittee, respond. Both houses would have to negotiate to reach a common version of the bill and then have an additional vote in each House. Lofgren has not yet indicated her position on the Grassley language. And it is not clear whether the Senate leadership is prepared to move the bill forward in any case.

And then there is the question of whether President Trump would sign the bill. FAIR and the Center for Immigration Studies, two prominent anti-immigrant groups, have come out against the bill and the Department of Homeland Security took the unusual step of issuing a statement opposing on the grounds that the bill doesn’t do anything to address the President’s stated goal of moving the employment-based immigration system to one that is more merit-based. The House bill passed by well in excess of a veto-proof margin, but it’s not clear if the Senate has the same percentage of supporters.

Should the bill pass and nationality discrimination be eliminated, the employment-based immigration system still faces severe challenges. The quotas that apply today were set in 1990 and are wholly inadequate to meet demand. For the most part, the Indian and Chinese skilled worker population have absorbed the bulk of the inadequate supply but ending discrimination will mean that backlogs will affect every applicant. Thus, advocates will have to focus on raising numbers across the board or the backlogs will end up crippling the system as the US economy and the overall demand for global talent continues to increase.