President-elect Joe Biden has indicated that he will use his executive authority to reverse many of President Donald Trump’s immigration policies. Biden likely will move quickly to scrap the ban on travel from 13 countries, most predominantly Muslim, and to reinstate Deferred Action for Childhood Arrivals, the Obama-era program that granted temporary legal status and protection from deportation to residents brought to the United States without authorization as minors.
Another issue that deserves Biden’s urgent attention is stalled legislation in Congress that would expedite green cards for Indian and Chinese professionals, the former facing waits of well beyond their lifetimes. The Fairness for High-Skilled Immigrants Act overwhelmingly passed the House in fall 2019. But a companion Senate bill that then–Sen. Kamala Harris (D–Calif.) co-sponsored was derailed partly because of resistance from fellow Democratic Sen. Dick Durbin of Illinois. Biden can demonstrate his good faith on immigration by telling Durbin to get on board.
Current law caps the number of employment-based green cards that can be granted each year at 40,000. That is far fewer than the demand for green cards in that category. Making matters worse, nationals from any one country can be granted only 7 percent of the total.
As a result of that rule, a very small share of high-skilled professionals from India and China are able to land green cards even when their petitions have been approved. These two countries send America the bulk of our imported high-skilled talent, typically on H-1B visas. Meanwhile, the green card quotas for countries that don’t send much high-skilled talent to the U.S. go unfilled.
The upshot is that an estimated 800,000 immigrants who are working legally in the United States are waiting for green cards, an unprecedented backlog in employment-based immigration. The vast majority are Indians; Chinese are the next biggest category.
An Indian national who applies for a green card now might wait 50 years (or more) to get one. Under current policy, the Cato Institute’s David Bier estimates, 200,000 Indians will die of old age while waiting for green cards. The children of such workers qualify for dependent visas until they turn 21, at which point they become “legal Dreamers”—people who have grown up in this country but can’t qualify for permanent residence.
The Fairness for High-Skilled Immigrants Act would ameliorate this situation in two ways. In the first phase, it would eliminate the 7 percent per-nation cap, letting Indians and Chinese receive 85 percent of green cards in the first and second years, then 90 percent in the third year. The bill also stipulates that no national whose green card petition had been approved would face any delays. After three years, the bill would eliminate the nation-specific cap and award green cards on a first-come, first-served basis.
The legislation would address an unfair policy that lets an I.T. professional from, say, Sweden get a green card within a year while making a similarly situated Indian wait decades. Because of the annual cap on green cards, however, this fix will initially force some people from other countries to wait longer than they do now. A solution to that problem would be to raise the green card cap—or, better, eliminate it right away.
That’s where Durbin comes in. An alternative bill proposed by the Illinois senator, the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act, would raise the annual green card cap to a level large enough to clear the existing backlog. That idea was anathema to restrictionist Republicans. In addition to introducing his own bill, Durbin added red tape to the Fairness Act aimed at preventing alleged H-1B abuse by employers, which raised concerns in the business community.
While the RELIEF Act is a superior bill, passing something like the Fairness Act would not preclude coming back and doing better legislation later. At this stage, giving relief to folks who are playing by the rules should be a priority. Biden should impress that upon Durbin and other Democrats who are placing obstacles in the way of incremental reform.
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