Immigration Matters - 2019


House of Representatives Passes Game-Changing Legislation

By Rishi P. Oza

On July 10, 2019, the United States House of Representatives passed the H.R. 1044 – The Fairness for High-Skilled Immigrants Act of 2019, an achievement that garnered little attention in the highly partisan immigration debate currently raging in Washington. Although cable news outfits and most media sources only gave the legislation nominal attention, particularly in light of the current migrant crisis at the nation's southern border, H.R. 1044, if signed into law, would significantly impact the lives of Indian (and to a lesser extent Chinese) nationals in the United States. While observers remain skeptical as to whether such a bill has a chance of actually becoming law, the bill would reap significant rewards to the thousands of highly skilled immigrants currently waiting for a green card.

Current immigration laws feature per country limitations on the types of visas that can be issued to any one country. The Immigration and Nationality Act caps the issuance of immigrant visas to only 7 percent of those visas annually available to any one country. These caps are reflected in the law as Congress allows for 480,000 visas to be issued for family-based preference categories and 140,000 for employment-based preference categories. As a result, those countries that have a high demand for either family or employment-based visas typically hit the 7 percent cap, resulting in longer and longer backlogs for individuals seeking to secure lawful permanent residency status.

In practical terms, the current law allows for 480,000 visas to be available annually for over 21-year-old children of US citizens (both married and unmarried), spouses and unmarried children of permanent residents and siblings of US citizens. This has resulted in huge backlogs for countries where family-based visas are in high demand, specifically Mexico and the Philippines. For example, a Mexican citizen sponsored by his US citizen brother would have to wait 22 years to be able to immigrate to the United States; a Filipino would have to wait 21 years. By comparison, an Indian national would have to wait 15 years, whereas a national of any other country in the world would have an approximate 13-year wait time. H.R. 1044 would increase the per-country limit cap from 7 percent annually to 15 percent annually, a change that would help to significantly reduce wait times for Mexican, Filipino and Indian citizens.

The difference on the employment side is even starker. Currently the 7 percent cap for employment-based visas has resulted in significant backlogs for Indian and Chinese nationals, with Indian citizens feeling the brunt of the problem. Individuals of extraordinary ability, outstanding professors/researchers or intra-company managers and executives (known as EB-1 Priority Workers) from India currently face a green card wait time of nearly 3 ½ years; Chinese nationals face a lag of a little over 2 years – the remainder of the world's nationals face a mere 18 month wait time. While this difference is not particularly troubling, policymakers should keep in mind that EB-1 caliber workers are considered the most highly skilled members of the entire global economy and often may have a choice on where they want to live and work. By delaying permanent residency status for these priority workers even slightly compared to other nations, the United States places itself at an unnecessary disadvantage in attracting global talent.

The second and third preference employment-based workers from India face an even gloomier outlook. These workers, known as EB-2 and EB-3 level workers, fill positions that either require an advanced degree (EB-2) or are considered professionals/skilled workers (EB-3) – these workers make up the bulk of employment-based permanent resident applicants. When looking at the wait times for EB-2 and EB-3 applicants, nationals of all countries in the world except for China and India face no wait time in applying for a green card, except for the time associated with standard case processing. Conversely, EB-2 and EB-3s from China are delayed almost 3 years before being green card eligible; Indian citizens in these same categories must wait over 10 years before being eligible to apply for permanent residency, an astounding if not absurd consequence of the per country limitation.

As a practical matter, Indian citizens that work as physicians, engineers, scientists, teachers and a host of other skilled and necessary positions are artificially forced to wait over a decade to have certainty in their lives. They must obtain extensions of their H-1B status for years on end with the stress of knowing that a disgruntled consular officer could jeopardize their ability to return to the United States; their children often have to pay out-of-state or international student rates despite living in the US for years; their ability to change jobs is often restricted by only being able to move to companies that would consider sponsoring their visas, thus stifling competition and innovation.

On the whole, by requiring Indian nationals to wait an exorbitant amount of time for residency status serves no overriding policy purpose, particularly when such individuals typically occupy highly skilled job positions and will eventually be rewarded green cards anyways. HR 1044 would entirely eliminate the per-country limitation, thereby placing Indian and Chinese nationals on the same footing as their worldwide counterparts. This change would clear an exceedingly long backlog of talented and educated individuals, thereby removing an otherwise counterproductive policy side-effect and free thousands of Indian and Chinese workers to be able to finally call the United States home. Given the high concentration of technology workers in North and South Carolina, the passage of H.R. 1044 could be a boon for local workers with pending green card applications.

Looming over the passage of H.R. 1044 is the challenge that it faces in both the Senate and White House. Majority Leader Mitch McConnell has crowed about his role in making the Senate a graveyard of House-passed legislation and skeptics contend that despite bipartisan support of such legislation, McConnell's reticence towards even holding a vote on the measure will likely lead to the bill dying without advancement to the President's desk. Should the matter manage to gain Senate approval, the White House's mixed signals on immigration efforts further cloud the bill's future. Regardless, everyday citizens should applaud the efforts of House members to correct what can only be described as an unnecessary limitation on the lives of otherwise worthy members of our society. In passing H.R. 1044, the House has taken a step (although perhaps symbolic) that reforming our immigration system can be done, even if such progress is slow and wonky.

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Rishi P. Oza is the Partner at Robert Brown LLC, a firm that focuses solely on immigration law; he practices in Durham. roza@rbrownllc.com