On December 2, 2020, the Senate passed S. 386, the Fairness for High Skilled Immigrants Act. The House passed a companion bill, H.R. 2044 in 2019.
Both bills arose because of enormous backlogs for high skilled immigrants that particularly impact talented individuals from India and China. Low annual numerical limits on employment-based immigrants to the U.S., combined with per country immigration limits, have led Indian and Chinese professionals already approved to immigrate to wait decades before they can become permanent residents. The bills aimed to reduce these untenable backlogs.
While well intended, as passed, S. 386 is fundamentally flawed and will do more harm than good. The current version of S.386 would
- Fail to increase the 140,000 per year limit on the number of available employment-based green cards – which is the chief reason for the backlogs;
- Actually increase the green card backlogs for professionals from India and China by as much as 20 years by FY 2030, according to a Congressional Research Service analysis;
- Cause professional workers from other countries, who currently have no backlog, to wait years to get their green cards (without increasing the 140,000 annual cap, the only way to allot more permanent residency visas to Indian and Chinese professionals is to take them from the overall cap, leaving fewer visas for professionals from other nations);
- Take over 9 years to fully implement (the original version of the bill would have rolled out in 3 years), while the backlogs continue to grow; and
- Due to an eleventh hour amendment to the bill, it would discriminate categorically against professionals from China by denying them adjustment to permanent residency status in the U.S. if they’ve ever had any affiliation with the Chinese military or the Communist Party. Many jobs in China require compulsory party membership, regardless of a person’s ideology, and registration for military service is compulsory. This amendment hails back to the dark days of discrimination against Chinese citizens, who were denied the right to become U.S. citizens until 1952. This is morally wrong and economically short sighted, and particularly damaging to businesses already employing Chinese professionals who were counting on them being able to continue their employment as permanent residents.
Countries like Australia, Ireland, Canada and Germany are opening their doors wide to attract more immigrants. S. 386 would have the U.S. do the opposite. making it harder for the U.S. to compete for foreign talent, just when we need more immigrants to help with our economic recovery and to overcome our aging demographics.
Some are urging that S. 386 be attached to the omnibus spending bill that must be passed before year’s end to prevent a government shut down. MeBIC vigorously opposes adding S. 386 as passed to the spending bill.
It’s unquestionable that the problem that S. 386 is trying to solve should be fixed, but in the next Congress, after thoughtful debate. For more about the effects of S. 386, see this analysis from the Cato Institute.