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The Dilemma of Per Country Limits
February 22, 2019 at 12:00 AM
by mattenlaw
people in train station

In a previous post, we discussed the immigrant visa allocation system based on preferences. Now we turn to the subject of per-country limits. Congress is considering a major change to the law that will profoundly benefit one worthy and deserving group by significantly hurting another.

Fairness for High Skilled Immigrants Act

Companion bills were recently introduced in both houses of Congress to eliminate the per-country limits on employment-based immigrant visas. US Senators Mike Lee (R-Utah) and Kamala Harris (D-Calif.) introduced the Fairness for High Skilled Immigrants Act (S. 281), while Representatives Zoe Lofgren (D-Calif.) and Ken Buck (R-Colo.) introduced similar legislation (H.R. 1044) in the House of Representatives. 

“The proposed bill offers a sensible reform to address per country cap backlog issues for permanently employed foreign professionals already working in the United States, who have fully approved green card petitions. These are not new immigrants; they are part of our workforce today.”

- Compete America, February 7, 2019

Per-Country Limits

What is a per-country limit and why would eliminating it be fair? Many US companies and their employees in the IT sector are supporting this legislation. Considering that the actual number of employment-based immigrant visas will not be increased, one might ask what’s going on. As with any scarce resource, there will be negotiations to obtain a bigger piece of pie. So who are the winners and losers of this legislation? And is there a moral argument to pass this las?

“[T]he Hart-Celler Act … literally changed the face of America. It ended an immigration-admissions policy based on race and ethnicity.”

- Migration Policy Institute, October 15, 2015

Since the beginning of US history, our nation’s immigration laws have discriminated. At the turn of the 20th Century, the Supreme Court had to intervene to extend birthright citizenship to Chinese persons. After World War II, US immigration laws finally shed a system that overtly discriminated on the basis of race and ethnicity and adopted a system that was intended to ensure diversity of the nationalities coming to our shores. Indeed in 1990, Congress even created a category named the Diversity Visa

Preference Categories

The current immigration law is based on a system of national priorities. On the employment side, these priorities – called preference categories – are intended to ensure the US attracts the top talent in the world without negatively impacting US workers. Built into the system, Congress added a per-country limit of 7% of the total allotment to ensure no single country exhausted a category of immigrant visas before other countries’ intending immigrants had an opportunity. On its face this system seems inherently inclusive and ensures diversity. But one man’s diversity is another woman’s discrimination. Today, the per-country limits result in disproportionate wait times for people born in India and China in the employment context.

“STEM-related jobs grew at three times the rate of non-STEM jobs between 2000 and 2010. By 2018, it is projected that 2.4 million STEM jobs will go unfilled.”

- Smithsonian Science Education Center 

As the Information Technologies sector of the global economies took on an ever-increasing importance, the immigration laws didn’t keep up with the changing demographics of the workers needed to fill all the open positions. One of the biggest challenges in the US labor market is filling positions that require a background in Science, Technology, Engineering and Mathematics, the so-called STEM fields. The shortage of US workers with the required background is so severe that entire government programs have been setup to help graduate more Americans in these fields. But as with many things, government does not move fast enough for business. And while the number of unfilled STEM positions rose to 2.4 million in 2018, US employers began hiring increasing numbers of foreign nationals, a significant percentage of whom happened to be from India. (Interestingly the growth of the IT industry and STEM-degree graduates in India can be traced back to other historical economic forces in the US market, but this particular Butterfly Effect is a topic for another post.)

The Disproportionate Impact on Indian and Chinese Immigrants

As the number of Indians filling these US positions increased, India quickly reached its per-country limit of employment-based immigrant visas. The pent-up demand is now estimated to take 150 years to fill. All the while, foreign nationals from most other nations with the exact same credentials and jobs faced no visa backlog at all.

Does it really make sense that a small country like Luxembourg with a population of 590,000 has access to the same number of high-skilled employment green cards as India with a population of 1,339,000,000? All the while India has a tremendous built-in base of IT companies and engineering graduates. Does it make sense that the preference system which is intended to prioritize the type of workers most needed by the US economy has an arbitrary per-country limit which could have the unintended consequence of limiting the very workers most needed by the economy?

What will happen to Canada and Other Countries?

It is objectively and clearly unfair that two identically qualified and skilled employees – say one Canadian and one Indian - for the same company in the same job could have such vastly different experiences in the green card process. In the case of the Canadian, the entire process will likely take one- to two-years. Meanwhile, even in the best case scenario, it will take over ten years for the Indian to follow the same process.

The High Skilled Immigrants Act is intend to address this inequity. The bill is supported by a number of America’s large tech companies. But if this bill becomes law, what would happen? 

“Canada would be immediately reduced to zero – indefinitely. … After [2021], there would be [no visas] for Canada in any employment-based immigration category until the backlog equalizes for all nations. … In the EB-2 [advanced-degree professionals] category alone, where applications for Canadians are now current, there would be a 12 year wait.”

- Andy J. Semotiuk, Forbes.com, December 1, 2018

By eliminating the per-country limit, there are already so many Indian and Chinese applicants in the pipeline, that any new green card applicants – regardless of nationality - would take at least 12 years to complete the process. During that period of time, every employment-based immigrant visa would go to India or China. 193 countries of the world would be shut out of the process. How is that fair? Effectively one wrong is righted by creating a new wrong.

Unintended Consequences

One potential consequence of this new reality is that individuals and companies based in every other country will seek another overseas location in which to expand their operations. Why would a growing Canadian company establish a US subsidiary if their CEO or Founder is unable to immigrate to the US? With more and more virtual ways to tap into the US market, might the company establish a new manufacturing plant or service delivery facility in Europe or Asia instead? By significantly helping the IT industry, would Congress be negatively impacting other industries and growth opportunities for the US economy?

Clearly the current state of the law is wrongly impacting India and China. Some go so far as to say that the current system is racist. But plugging the existing hole by merely eliminating the per country limits only creates new problems. The historical wrongs need to be addressed and perhaps the High Skilled Immigrants Act is the best that can be hoped for to immediately correct one wrong. But Congress must just as urgently come up with a more effective immigrant visa solution that doesn’t simply trade one problem for another. A solution that is appropriate for the economy in 2019 and beyond. This could mean everything from simply increasing the overall number of available visas to modernizing the way employment-based visas are prioritized and adapted to current labor market conditions and needs.

What can you do?

The bottom line is that the earlier your priority date the better off you will be. If you are considering pursuing an immigrant visa, it is important to begin the process as early as possible and stay informed. Contact us to discuss your questions.