On October 28, 2011, the House Judiciary Committee approved a proposal brought forward by Tea Party favorite Congressman Jason Chaffetz(R-UT) with the support of Rep. Zoe Loefgren (D-Cal), an ardent advocate for more immigration, and Rep. Lamar Smith (R-Tx), not previously known for his pro-immigration stands. Such diverse parentage suggests this is one bill that might actually go places. So, it might be worth a few moments to find out what it says.
Right now, the INA permits the issuance of 140,000 employment-based immigrant visas each fiscal year with the nationals of any one country limited to 7% of that total. Under HR 3012, the so-called Fairness for High-Skilled Workers Act, would remove the per country cap on EB migration entirely, raise the cap on family migration to 15%, and stop taking 1,000 numbers from EB-2 China to compensate for the Chinese Student Protection Act. There are transitional rules for Fiscal Years 2012(October 1, 2011-September 30, 2012) through FY 2014 under which a certain percentage of immigrant visas would go to nationals who are natives of a foreign state or dependent area that was not one of two countries with the largest number of natives obtaining LPR status in that fiscal year. In FY 2012, this percentage would be 15% and would decline to 10% for the following two fiscal years.
According to the report issued by the Office of Immigration Statistics in late October, Mexico sent more immigrants than any other country(3.3 million or 26%) followed by the Philippines (560,000 or 4.4%) after which came China (550,000 or 4.4%), India (500,000 or 4.0%) and then the Dominican Republic(440,000 or 3.5%). The top 10 sending countries, including Cuba, Canada, El Salvador, Vietnam and the United Kingdom, accounted for 55 % of all permanent residents in FY 2010.
The motives behind HR 3012 are laudable, to end the chronic backlogs in EB-3 and EB-2 migration from China and India; to allow highly-skilled scientists and engineers to make the US economy more competitive; and to avoid having to send this top talent to our competitors abroad so that more white collar jobs can flee these shores. Amen to all that! The IT industry and the immigration bar are in hog heaven as we used to say in Flatbush. So, what's not to like? Isn't this what we all want and have been asking for?
The current system discriminates against nationals of China and India based on their country of origin. It is essentially an unintended but no less brutally effective revival of the hated national origins quota enacted in 1924 to keep Jews and Catholics from coming to the United States. Now we keep out highly educated STEM Degree holders from China and India. What would the end result of lifting the cap on EB per country migration be? It would mean that those born in these two countries would virtually monopolize all available EB visa numbers each fiscal year. By ending the inanity and inequity of treating Chinese and Swiss nationals the same, Congress would be effectively creating an equally pernicious regime that will admittedly treat everyone equally but, in practice, would keep out nationals of every country save for India and China. Everyone else would be infinitely worse off than they are now. The yawning EB backlogs for China and India would disappear to be replaced by equally discouraging queues for the rest of the world.
Do we really want to create an employment-based green card system that only works for India and China? Should discrimination against an educated workforce from these two countries be shelved only to discriminate against no less talented professionals from everywhere else? Why would those who favor diversity in college admission and employment hiring not recognize its value in immigration quotas? Doubtless advocates would contend that spreading the pain around is the best, maybe the only way, to get Congress to enlarge our manifestly inadequate EB quotas and they could be right. Before we join in the chorus for this radical move away from geographic neutrality, why not consider an alternative such as giving China and India a preferred position but not scrapping EB per country limits entirely? Remember the old adage: Beware of What You Wish For- You May Get It!
Gary Endelman is a Senior Associate at Fong & Associates, LLP, a firm specializing in corporate immigration law. Fong & Associates clients include S&P 500, Fortune 500, Global 500 and IT 100 companies, large-cap and mid-cap companies, oil and gas companies (integrated, operations and oil well services), hospitals, school districts, colleges and universities, research institutes, high tech manufacturers and software companies. Gary Endelman's practice includes I-9 compliance and audits, E-Verify compliance, immigration issues related to mergers and acquisitions, employment-based nonimmigrant visas, B-1 OCS, permanent residence petitions for international executives, aliens of extraordinary ability, outstanding researchers, PERM labor certification; naturalization, derivation and transmission of U.S. citizenship. This article does not reflect the opinions of Fong & Associates.