If Congress fails to pass new legislation, some of the most highly skilled professionals in America will be forced to leave the country or wait decades for employment-based green cards. How did America become mired in such a mess and what can be done to fix the problem?
The Origins of the Problem
Back in 1990, when the Immigration Act of 1990 was passed, Congress had a chance to secure America’s future as a magnet for top talent from all over the world. It failed in this mission.
First, Congress changed the existing H-1 temporary visa category to H-1B, added new requirements and set an annual limit of 65,000. Employers reached this limit within 6 years – and have also reached it every year for the past 16 fiscal years, encouraging companies to place more workers outside the U.S.
Second, Congress set an annual limit of 140,000 on employment-based green cards (for permanent residence). More than 20,000 of the green cards each year are devoted to immigrant investors, workers for jobs that don’t require a college degree, religious workers and others. More importantly, dependents (spouses and children) count against the 140,000 annual limit, accounting for about half of the total each year.
Third, the Immigration Act of 1990 unwisely retained per-country limits on employment-based immigrants. This continues to make no sense. It would be discrimination if a company said it will only hire a certain number of people of Chinese origin this year, yet collectively U.S. employers are only allowed to gain permanent residence for a limited number of people from any one country. Companies should not care where a person was born and neither should Congress.
Due to the combination of the per-country limit and 140,000 employment-based green card allotment, the National Foundation for American Policy estimates an Indian-born professional in the third preference (EB-3) can wait 10 to 25 years or longer for an employment-based green card. I have met dozens of individuals who have already waited more than 10 years for a green card.
Congress Misses the Technological Revolution
A key reason members of Congress failed in setting workable employment-based immigration limits in 1990 is they lacked imagination – or any sense of our technological future. In short, new technologies created a demand for people with technical skills well beyond the annual limits on H-1B visas and employment-based green cards established in the Immigration Act of 1990.
Back in 1990, the World Wide Web did not exist on a global basis for individuals and nobody knew that e-commerce would become a key aspect of economic life for many consumers. Streaming video? Streaming music? Social media? Online multiplayer video games? Those who set our immigration limits could not have anticipated any of these developments. Establishing flexible or market-based limits, instead of fixing in place rigid caps, would have made a great difference.
Consumer devices, most notably the smartphone, have spawned new industries. Just like Netflix couldn’t have sent bulky videotapes through the mail before the invention of DVDs, Uber and Lyft could not exist without smartphones.
New advances continue to fuel the demand for skilled labor in the U.S. And this comes at a time when only about 20% of the full-time graduate studentsat U.S. universities in computer science and electrical engineering are U.S. citizens (or permanent residents). “Emerging technologies, such as driverless vehicles, may also be increasing the demand for people with high levels of technical skill, including foreign-born researchers,” noted a recent National Foundation for American Policy report. “Tesla (207 approved new H-1B petitions in FY 2017), Uber (158) and General Motors (179) all employ individuals in H-1B status.”
This is actually an easy problem to fix. Congress needs to take three steps. First, to alleviate the burden on those waiting the longest, Congress could pass H.R. 392. With 323 cosponsors, the bill has achieved a level of bipartisan support unheard of in this age of polarization.
“Due to an arbitrary per-country cap in the employment-based green card laws, immigrants who come here legally on work visas from India or China face a massive backlog for obtaining their permanent residence,” H.R. 392’s chief sponsor, Rep. Kevin Yoder (R-KS), told me in an interview. “If you do some simple math, you’ll realize many of these individuals will go their entire lives without ever getting their green card. Whereas, there are individuals who come here from other smaller nations that can get one in a matter of two to three years.”
Yoder’s bill would transition to an immigration system that operates without per-country limits in the employment categories. That would dramatically reduce the wait times for those who have already been waiting a decade or more and allow all new entrants to gain permanent residence in a more reasonable time frame.
Second, Congress should raise the annual limit well above the 140,000 now permitted each year for employment-based immigrants.
Third, Congress should exempt the dependents of sponsored immigrants from the numerical limit, as well individuals with graduate degrees in science and engineering fields.
For those who worry this will lead to fewer jobs for U.S. workers, well, stop worrying. “The results of the state-level analysis indicate that immigration does not increase U.S. natives’ unemployment or reduce their labor force participation,” according to a study for the National Foundation for American Policy by economist Madeline Zavodny. “Instead, having more immigrants reduces the unemployment rate and raises the labor force participation rate of U.S. natives within the same sex and education group.”
The Benefits of Solving the Problem
Enacting these reforms is a humane solution that will benefit America economically. If U.S. companies can retain and attract top talent they will better compete in global markets and create more jobs in America. A solution would also help people like Sunayana Dumala.
In February 2017, a racist gunman yelled, “Get out of my country” and shot Srinivas Kuchibhotla and another H-1B visa holder (Alok Madasani) at Austins Bar & Grille in Olathe, Kansas. (Ian Grillot was shot trying to disarm the shooter.) Srinivas Kuchibhotla’s employer applied for his green card in 2010. Because of the per-country limit and numerical restrictions in the employment-based category, the long wait meant Srinivas died before his application was approved. Without permanent residence, his widow, Sunayana Dumala, has no legal right to live permanently in the United States. Rep. Yoder has worked to help Sunayana stay in the U.S., while also seeking a long-term solution to the green card problem for high-skilled immigrants.
Jyoti Bansal has lived the kind of American Dream success story everyone can embrace – but it almost didn’t happened. “I waited 7 years for my employment-based green card and I wanted to leave my job and start a new company but couldn’t,” Jyoti told me in an interview. “What is most frustrating about the green card process is you have no control over a major part of your life. I have friends who became frustrated with the uncertainty and after years of waiting they finally left the United States.”
Finally, in 2007, Jyoti received an employment authorization document (EAD) as part of the green card process. He left his employer and started AppDynamics. The company, which provides the equivalent of a 24 hour/7 days a week MRI for a customer’s website, with clients such as HBO, grew to over 900 people and a lofty valuation of $1.9 billion. That valuation was shattered in January 2017, just before an initial public offering, when Cisco acquired AppDynamics for $3.7 billion.
Jyoti Bansal has moved on to new ventures. But his company that employs over 900 workers and is worth nearly $4 billion almost never got off the ground because of a flawed immigration law. How many scientific breakthroughs and entrepreneurial marvels are being stopped before they start by the per-country limit and our low level of employment-based green cards? It’s time for Congress to fix the problem.