Scrapping the Per-Country Cap Helps the Companies that Shun U.S. Tech Workers

By Jessica M. Vaughan on November 9, 2018

Proponents of a controversial bill to end provisions in immigration law designed to prevent large immigrant-sending countries from monopolizing the limited number of green cards — the per-country caps — have attracted support in large part by portraying the caps as unfair national-origins discrimination against citizens of India. Ironically, several of the Indian companies who are lobbying for this bill are now defending themselves in federal court against lawsuits alleging that they practice egregious national-origins discrimination in favor of Indian workers over U.S. workers.

A trial currently underway in Oakland, Calif., is shedding light on the personnel practices and working conditions at the Indian technology-services companies that use temporary worker programs to place foreign workers, mostly from India, in back office jobs at U.S. companies. The plaintiffs, all former Tata employees who are not citizens of India and who are considered "local" U.S. hires, allege that there was routine discrimination and harassment of non-South Asians by Tata managers and supervisors.

For example, one former engineer, a citizen of Iran, testified that he was not only denied challenging assignments, but also mocked, referred to as a "Pakistani" who would be good at "blowing things up", and set up for petty infractions that led to his dismissal.

David Neumark, a labor economist from the University of California-Irvine, testified on the opening day of the trial that, based on the demographics of Tata's employees, there was more chance of him winning the Mega Millions lottery jackpot than Tata proving it doesn't discriminate against non-South Asians in hiring and firing. More than 70 percent of Tata employees are from India, Bangladesh, and Nepal, while only 20 percent of employees at other companies in the industry are from these countries. Similarly, Tata fires non-South Asian employees at 10 times the rate it lets South Asians go.

Similar class action suits are pending against six other Indian-owned technology-services companies, including Infosys, Cognizant, and Wipro. The Tata client list includes Apple, Kaiser Permanente, and Microsoft.

A number of these Indian firms and their large clients have registered to lobby for HR 392, called the Fairness for High-Skilled Immigrants Act, which would eliminate the per-country cap.

Versions of this bill have been batted about for at least six years and surfaced a few months ago in the form of an amendment to the must-pass DHS spending bill put forth by Rep. Kevin Yoder (R-Kan.). Most significantly, Yoder's provision would end the per-country caps for employment-based green cards. The statutory caps stipulate that if there are more people seeking employment green cards or immigrant visas than are available under the numerical limits set by Congress, then the allocation of the numbers will be capped at 7 percent of the total, plus any numbers not used by citizens of non-capped countries.

The purpose of the caps is to prevent the large immigrant-sending countries such as Mexico, India, China, and others from monopolizing the supply of visas. In practice, the cap preserves the ability of companies who are not major users of guestworker programs to obtain green cards or immigrant visas for skilled individuals from abroad or directly from U.S. universities. In contrast, the applicants who are affected by the caps are citizens of India who are currently in the United States as guestworkers, typically in the IT sector.

Cap opponents misleadingly assert that the per-country cap limits Indians to just 7 percent of the green cards for professionals, which would be just over 8,000 per year. In fact, it doesn't work that way. After worldwide demand is exhausted each year, the un-used numbers roll back to those on the waiting list. In recent years, citizens of India have received more than 20,000 green cards annually, or about 17 percent of all green cards issued in that category — far more than 7 percent under the theoretical cap.

I've been told by a source at USCIS that if the per-country cap were to be lifted, then for the next 10 years, nearly all of the green cards in the ordinary professional worker category would go to citizens of India. That means any company wishing to sponsor a professional from any of the other 150-plus countries that currently receive employment green cards or immigrant visas would have to wait 10 years or take their chances by entering the annual lottery for a temporary H-1B visa for that individual.

Passing this bill would perpetuate a greatly flawed system for issuing employment-based visas, without adopting safeguards for the American workers displaced and disadvantaged by it. The clients of the companies pushing this bill are the same ones that dismissed thousands of U.S. employees, and in many cases forced them to train the guestworkers taking their jobs — who are now complaining that they have to wait too long in line for green cards.

Instead, Congress should enact a merit-based scheme more like the point system proposed in the RAISE Act, which would award immigrant visas to the most qualified and talented applicants from all over the world.

For a more detailed explanation of why it's a bad idea to scrap the cap, see here.

Hear me debate the bill with Leon Fresco, former chief immigration policy counsel for Sen. Chuck Schumer (D-N.Y.), Gang of 8 Bill author, and now a lobbyist for HR 392 supporters.