Sep 27 2019
A system of laws should 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.
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.
Unfortunately, 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.
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 bill also contains key reforms to the current H-1B system to prevent the fraud and abuse that is currently undermining wages for American workers.
First, the bill strengthens law enforcement powers to police the H-1B system by empowering the Department of Labor to conduct annual compliance audits of all H-1B employers.
Second, the bill requires H-1B employers to advertise the jobs it wants to fill to American workers first.
Third, the bill closes the B-1 loophole H-1B employers often use to bring foreign workers here on a temporary basis before transferring them to the H-1B program.
Americans desperately need common sense immigration reform. But it should not be done in one big “comprehensive” bill. Instead, we need to take smaller common-sense reforms that solve specific problems with our current immigration system. If we wait for one big bill that tries to solve everything, it will never come. And the current fraud, abuse, and discrimination in our current system will continue.
The House of Representatives has already passed this bipartisan reform and I hope the Senate will follow soon.