Sep 19 2019
Mr./Madam President, I rise today to speak about the Fairness for High-Skilled Immigrants Act – an important and bipartisan piece of legislation on which I have been proud to partner with Senator Harris.
The Fairness for High-Skilled Immigrants Act has been a priority of mine for many years. During that time, it has been the subject of strong debate and scrutiny both on and off the Hill, and, like most bills, its path to becoming law has not always been straight or clear of obstacles.
But with the passage of the companion bill in the House by an overwhelming, bipartisan vote of 365-65, I believe now is the moment that we can finally move forward with this small, but critically important fix to our immigration system.
This is a reform that’s time has come, and I would like to take a moment to explain why it deserves the support of my colleagues.
The current per-country cap system is the antithesis of a well-designed system of laws
Wrangling over the nuts and bolts and fine-print details of policy, as extremely important as that is, can at times cause us to lose sight of more basic, foundational principles that should shape any law or set of laws that we put on the books.
Among other things, our laws should be consistent with our nation’s deeply held beliefs and values.
A system of laws should also be clear and coherent, meaning that it should not only give adequate notice of what is required to comply with the law, but should in fact be capable of being complied with.
Finally, the means employed by any law should be consistent with the objectives it is meant to accomplish.
These are not partisan principles – they are simple, yet incredibly important guideposts that should direct the actions of anyone entrusted with crafting a legal system, as we are in this chamber.
Unfortunately, the laws we pass do not always live up to these standards of fair and effective lawmaking.
One of the starkest examples of our failure to abide by these principles is in the way we allocate employment-based green cards.
Few ideas are more central to who we are as Americans than the notion that people should be judged and treated based on their own merits as an individual with God-given rights, not on the basis of the color of their skin or where they come from.
As our Founders wrote, “We hold these truths to be self-evident, that all men are created equal…” Those words are as much a part of our national creed in this moment as they were when they were written two hundred and forty three years ago, and our laws should reflect their enduring truth.
Despite this ideal, section 1152 of the Immigration and Nationality Act provides that the total number of employment-based visas “made available to natives of any single foreign state… in any fiscal year may not exceed 7 percent… of the total number of such visas made available.”
That rather antiseptic language, technical and clinical on its face, is, on closer inspection, deeply out of step with this country’s commitment to nondiscrimination and equal treatment before the law.
In practice, section 1152’s seven percent cap on immigrants from any one country means that, if two immigrants apply for an employment-based visa at precisely the same moment, and have the exact same skills and education, one of them may wait 12 months for a green card while his counterpart languishes in the green card backlog for decades. The only factor that accounts for this gross and unfair disparity of treatment is the fact that the second immigrant happened to have been born in a different country than the first.
This is because, under the per-country cap system, immigrants from larger countries are only eligible to receive the same number of green cards annually as immigrants from smaller countries. As a result, the wait times for immigrants from larger countries have grown and grown, decade after decade, with no end in sight.
This amounts to de facto country-of-origin discrimination – plain and simple – and no amount of legalese or wonkish policy arguments can cover up that fact.
Beyond its incompatibility with the deep and abiding principles this country was founded on, the per-country cap system violates another one of the common sense maxims of good lawmaking I mentioned earlier – the need for clarity and consistency in the law.
Title VII of the Civil Rights Act provides that it is unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
Yet the conditions created by the per-country caps virtually guarantee that employers, on some level, must take into account national origin when recruiting certain immigrant workers. If prospective hires from one country will be able to obtain a green card in 12 months, while those from another – even ones that have superior training or skills – will be unable to obtain a green card for decades, it is virtually unavoidable that the employer will take national origin into account.
So think about that: one section of the U.S. Code forbids employers from taking national origin into account when making employment decisions – another section makes it impossible for them not to. The grounds on which that kind of system can be defended as sound public policy are beyond me.
And the pernicious consequences of this intrinsically flawed system do not stop there.
Ninety-five percent of immigrants stuck in the green card backlog are already in the United States on temporary visas. In many cases, they have brought their spouses and children with them to build a life in this country. Yet because temporary visa holders can only sponsor their foreign-born children up until the child turns twenty-one, many in the backlog waiting decades for a green card are forced to choose between separating from their child as the child ages out of the temporary visa, or abandoning their dream of settling in America in order to return to their home country to keep their family together.
In the most heartbreaking cases – of which there are far too many – the child was brought here at a very young age, and has no memory of the country to which they are forced to return.
It bears repeating, this is happening not because these individuals broke the law or because they do not satisfy the merit-based eligibility criteria needed to receive an employment-based green card. It happens for no reason other than what country they happen to be from.
Finally, the per-country cap system is irredeemably flawed because it is incompatible with the goals that our employment-based visa system is meant to advance.
The employment-based visa system is supposed to enable American businesses to bring the best and the brightest to this country. Yet under the per-country caps, a factor that has nothing to do with a person’s skills or merit distorts the recruitment process. This weakens the merits-based portion of our immigration system. Indeed, it is directly at war with the supposed purpose of our employment-based green card program.
What the bill does
Despite its obvious deficiencies, the per-country caps have been part of our immigration laws since the 1950’s. It is long past time we replace it with a more rational and equitable approach.
Fortunately, the solution to these problems is not only straightforward, but agreed upon by a broad, bipartisan coalition of senators. We must simply eliminate the per-country caps in order to ensure a fair and reasonable allocation of employment-based green cards. That is exactly what the Fairness for High-Skilled Immigrants Act would accomplish.
Without the per-country caps, our skills-based green card system would operate on a first-come, first-serve basis, ensuring that immigrants are admitted into the United States purely based on their merit, rather than their country-of-origin. This reform would also ensure that the hardships caused by decades-long wait times are eliminated.
The Fairness for High-Skilled Immigrants Act presents a golden opportunity for meaningful, bipartisan reform
As I have said in the past, there is no question that immigration is one of, if not the most politically fraught issues in Congress right now. That makes it all the more important for us to at least come together to get something done in those areas where we can find common ground.
The Fairness for High-Skilled Immigrants Act is an important point of common ground.
Any immigration bill that has 35 Senate co-sponsors – 20 Republicans and 15 Democrats – as this bill does, presents a unique opportunity to secure a victory for the American people.
The reason why this bill commands such widespread support from all points of the political spectrum is because, as I have explained, the arguments in its favor are not your typical partisan or ideological arguments. Rather, common sense about the way any rational legal system should work makes clear that the per-country caps must go. That’s what is needed to make our immigration laws consistent with our principles; consistent with other laws on the books; and consistent with the merits-based objectives this component of our immigration system is meant to promote.
The other reason the Fairness for High-Skilled Immigrants Act has been so successful in attracting support from both sides of the aisle is because we have scrupulously avoided the typical poison pills that so often doom attempts at immigration reform.
This bill is not comprehensive immigration reform. It is not even close to being that. And that is in fact why this bill is something that we can actually get done now.
While it does not fix many of the other flaws that plague our broken immigration system, it is a great and important start to reform. If we are to ever have a chance at modernizing and repairing our immigration laws, we need to recognize that we cannot necessarily solve all our problems at once. The fact that this is the case should not stand in our way of us starting the work the American people sent us here to do. We cannot allow the perfect to be the enemy of the excellent.