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Update 12/3/20: A unanimous consent agreement for S.386 was reached and the bill was passed as amended.
Yet another effort to discard the per-country cap for employment green cards fizzled in the waning days of the 116th Congress. But it's sure to come back in the new 117th Congress.
As described in previous posts, this change would give a fast track to permanent residency mainly to tech workers from India who came on temporary visas, at the expense of applicants from other countries who currently are farther up on the waiting list, which operates to ensure country of origin diversity in employment green card issuances.
Sen. Mike Lee (R-Utah) finally managed to engineer passage of a new version of the controversial measure in the lame duck Senate last month, without an open hearing or meaningful debate. In the process, he had to make concessions to colleagues and special interest groups, and include provisions that ultimately made the bill unpalatable to House Democrats, which had passed its own (worse) version in 2019. But the Senate changes were substantial enough to make it impossible to get to a final vote of approval by both chambers by the end of the session, which would have sent the bill to the president's desk.
We can expect the proposals to return in the new year, in one form or another. For future reference, here is a summary of the main provisions in the latest version that was passed by the lame duck Senate.
- Beginning in 2022, as many as 70 percent of two of the employment-based green card categories (the EB-2 and EB-3 categories, which are the slots used by most H-1B visa workers seeking green cards) would be awarded to citizens of India. Currently, citizens of India receive about 15 to 25 percent of these green cards, due to a longstanding provision in the law known as the per-country cap, designed to prevent citizens of just a few countries from receiving most of the available green cards. Nine years after enactment, as many as 85 percent of green cards could go to citizens of India. The provisions also would result in a large increase in visas to citizens of China, who currently also are affected by the per-country cap.
- The bill would set aside at least 4,400 green cards for nurses and physical therapists, not counting their families, within the EB-3 category for seven years. The overall cap for this category is about 40,000, so this means that nearly 20 percent of the green cards would go to these applicants, the largest number of whom are citizens of the Philippines. This classic "me too" provision was the result of a lobbying campaign organized to protect the interests of the foreign healthcare workers, who are among the green card applicants who would go to the back of the line if the per-country caps were to be eliminated at the behest of the tech company lobbyists.
- Lee's bill would have established a cap on green cards issued to H-1B workers and their dependents. It stipulated that for the first nine years, no more than 70 percent of all employment green cards could go to H-1B and H-4 workers; after nine years, the cap would be lowered to 50 percent. This provision would likely be a small speed bump on the path to green cards for H-1B workers and their families. The number of H-1B workers adjusting to green cards annually is not published by USCIS, but statistics obtained by researchers through FOIA requests show that in the recent past, an average of 44,000 employment green cards have gone to H-1B workers each year, plus an almost equal number likely going to their dependents, thus representing about 60 percent of all employment green cards. This provision could be a brake on the issuance of new green cards to citizens of India in EB-2 and EB-3. The majority of H-1B workers adjusting to green cards are from India, so the effect could be to enable Indians working in other temporary visa categories, such as L or F, to jump ahead of those on H-1Bs.
- The most impactful provision of the Senate bill was one dubbed "early filing". Currently, the temporary visa workers who are on the waiting list to apply for a green card cannot get a work permit enabling them to seek different employment until their green card application is in the final stages, which can take many years because demand exceeds the supply of green cards. The "early filing" provision would allow several more categories of visa workers to get a renewable work permit and seek new jobs after only two years of being sponsored by an employer. This streamlined path to a green card and relatively rapid open access to the U.S. labor market undoubtedly would attract larger numbers of visa workers. It also would offer a direct path to residency for workers in categories that otherwise would be constricted — especially ex-foreign students who obtain OPT work permits. In effect, by offering more temporary workers an indefinite work permit and open access to the labor market (as opposed to filling a specific job for a specific employer), "early filing" is an end run around numerical limitations on employment visas.
To secure passage of these big rewards to foreign workers and their employers, Sen. Lee had to agree to a number of provisions to address problems in the H-1B visa program that have long been sought by critics in both political parties. These included: creating a public website for advertising jobs before seeking to sponsor H-1B workers; banning "H-1Bs only" job advertisements; boosting recruitment of U.S. workers by H-1B employers; conducting more verification of wages paid to foreign workers; capping H-1B and L visa workers at 50 percent of total employment in larger companies; adding fees for employers seeking H-1Bs; prohibiting use of the short-term business visa for employment in the U.S.; expanding the authority of the Labor Department to investigate and audit employers; and increasing the consequences for employers who skirt the rules.
Another late-stage amendment was needed to obtain the unanimous consent of senators (thus avoiding the need for hearings and debate) — a requirement that green card applicants who are affiliated with the Chinese military or Communist Party apply from China rather than from within the United States.
The answer to the long waiting lists is not to scrap the per-country caps or to dispense with the numerical limits. Both of these changes would only preserve and reward the practice of replacing U.S. workers with "temporary" workers from abroad. Instead, Congress should scrap the current employment green card system and replace it with a merit-based system that offers a reasonable and finite number of green cards each year to the most highly qualified applicants, and require unsuccessful applicants to re-apply in the next cycle.