Conflicting Claims about the 'Best and Brightest' and '70-Year-Waits'

The two industry arguments that we: 1) must have more of the "best and brightest" foreign workers, and 2) that employment-based green card visas can be backlogged for as much as 70 years, do not work well together, though both pitches are made all the time.

The reality is that our immigration screening process is a multi-tier operation, tilted appropriately to give faster access to America to the alien workers with the most skills. Some spokespeople for the nation's corporations are all too ready to blur that picture.

The most recent complaint about the "70-year waiting period," for what I regard as a not terribly impressive subgroup of incoming immigrants, was included in a blog by immigration lawyer Greg Siskind in the October 8 issue of Immigration Daily carrying the bleak headline "Indian and Chinese EB-3 Applicants Face a 70 year Wait for Green Cards."

Siskind quoted a projection, perhaps a speculative one, by Stuart Anderson of the National Foundation for American Policy, a libertarian think tank, to support the 70-year claim.

Something like that may very well be the case, but it is, first, based on the inner workings of the immigration law, and second, not very worrisome if you actually want to use immigration slots for the "best and brightest".

Who are these EB-3 applicants? Well, they are unskilled workers, skilled workers, and those with bachelor's degrees.

The EB-1 class, on the other hand, consists of truly outstanding "priority workers" and there is no wait – none at all – for people this group.

Then there are the EB-2 workers, people with advanced degrees and other "persons of exceptional ability." There are, according to the State Department's current Visa Bulletin, no waits for green cards for any of these workers, except for those from China and India, and we are currently granting cards to workers from those countries who filed on or before July 15, 2007, a little over four years ago. And in any case, most of these aliens are already working in the U.S. with H-1B visas that can be renewed continuously until a green card is granted.

It is only when one gets to the third-class alien workers (EB-3) that the wait grows longer, with the Visa Bulletin saying that cards are being issued to aliens from China with August 2004 papers, and for those from India with July 2002 papers.

How does Anderson get that 70-year projection when people are coming in, even from India, after just nine years? Apparently he has counted or estimated the numbers in the queue who filed after 2002. Needless to say these workers, by definition, cannot be considered the "best and brightest".

How badly does industry need these third-class workers? Not at all, according to the testimony of a very senior industry official before the House of Representatives immigration subcommittee. I am referring to Darla Whitaker, a Senior Vice President of Texas Instruments, the lead-off witness at a hearing last week. Ms. Whitaker spoke on behalf of the Semiconductor Industry Association. (My blog on that hearing is here.)

She was asked by one of the committee members if Texas Instruments had any trouble hiring American electrical engineers with bachelor's degrees.

"None at all," she replied. Her concern was her company's ability to hire people with advanced technical degrees.

So at least in the case of that firm, there can be no worry about EB-3 workers and their waiting times. The company does not need to hire that type of workers overseas. And Ms. Whitaker was testifying for the entire industry.

The longish waits for green cards comes because of a congressionally mandated overlap of ceilings. There can be no more than 140,000 visas issued each year to employment-based workers generally, and no more than 28.6 percent of them are in the third category; in addition, no more than 7 percent of the green cards in a given category can be allocated to a single country. Since there are a large number of petitions granted for third-class workers from India and China, they tend to accumulate.

One way around this problem, a method that would require congressional action, would be to simply not issue visas that would be backlogged for more than five years. This would, over time, eliminate the backlogs and not threaten to increase the total number of immigrants to this country, where we already have a spectacular surplus of workers of all kinds.