Bills
| 3.23.22

Should Per-Country Immigration Limits Be Lifted? (S. 386)

Do you support or oppose this bill?

What is S. 386?

(Updated October 24, 2021)

This bill — the Fairness for High-Skilled Immigrants Act of 2019 — would eliminate per-country percentage caps in the employment-based green card system and increase the per-country numerical limitation for family-based immigrants from 7% to 15% of the total number of family-sponsored visas. Under current law, the per country caps have created a backlog of would-be immigrants from more populous countries. This bill would also remove an offset that reduces the number of visas for individuals from China.

This bill would be phased in as follows: 

  • FY 2020: 15% of immigrant visas would be allotted to immigrants who are natives of foreign states or dependent areas that aren’t one of the two countries with the largest aggregate numbers of natives obtaining immigrant visas; and
  • FY 2021 & FY 2022: 10% of immigrant visas would be allotted to immigrants who are natives of foreign states or dependent areas that aren’t one of the two countries with the largest aggregate numbers of natives obtaining immigrant visas.

This bill would also establish transition rules for employment-based visa from FY2020-FY2022, reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability) and EB-3 (skilled and other workers) visas for individuals not from the two countries with the largest numbers of recipients of such visas. Of the unreserved visas, no more than 85% would be allotted to immigrants from any single country. If the application of the rules in this bill would prevent the total number of immigrant visas made available to be less than the maximum allowed under the Immigration and Nationality Act (INA), the additional visas could be issued during the remainder of the fiscal year without regard to the rules set forth in this bill.

This bill would set-aside green cards for immigrants who aren’t in the backlog for three years to ensure that they can continue to enter the U.S. as backlog petitions are processed. It would also include  a “do no harm” provision to ensure that every person currently in line for a green card has the same or better wait time after this bill is passed

An amendment to this bill would add three new protections for American workers in how H-1B visas are processed: 

  1. Strengthen the Department of Labor’s ability to investigate and enforce labor condition application requirements; 
  2. Reform the labor condition application process to ensure complete and adequate disclosure of information regarding the employer’s H-1B hiring practices; and
  3. Close loopholes by which employers can circumvent the annual cap on H-1B workers.

This bill would not change the number of employment-based visas issued each year.

Argument in favor

The current immigration system of “per country limits,” in which citizens from a given country can’t receive more than 7% of all visas issues in a given year, significantly disadvantages workers from populous countries such as China and India.

Argument opposed

Per-country caps are a reasonable way of ensuring immigrants from around the world have a chance to come to America. Ending the per-country cap could open the door for immigration to skew towards more populous countries.

Impact

Highly-skilled immigrants; family-based immigrants; and U.S. Citizenship and Immigration Services.

Cost of S. 386

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sen. Mike Lee (R-UT) reintroduced this bill from the 115th Congress to allow employment-based green cards to go to immigrants with high skills who want to help grow the U.S. economy, regardless of their countries of origin. In floor remarks on June 27, 2019, Sen. Lee said: 

“Employment-based immigration visas – the one significant area of our immigration system based on skills and merit – are currently issued in accordance with per-country quotas. This means that, in a given year, immigrants from any one country cannot, in most cases, be given more than 7% of the total number of visas allocated. As a result, immigrants from nations with large populations have significantly longer wait times to get a green card than immigrants from smaller countries. In some cases, they can be stuck in a backlog of green card petitions for decades. These per-country caps cause serious problems for American businesses and workers, and unfair hardship for immigrants stuck in the backlog. While employment-based green cards are supposed to go to immigrants with high skills who will help grow the American economy, the per-country caps distort the system by causing some immigrants to wait years before receiving a green card for a reason totally unrelated to their qualifications. This undermines our ability to bring the best and brightest individuals into our country. Further, the per-country caps force the immigrants in the backlog – 95% of whom are already in the United States – to make the difficult choice between staying in America, and waiting decades for a green card, or leaving and taking their talents to a country that provides a fairer process for allocating legal immigrant status. Worse still, because individuals in the green card backlog can only sponsor temporary visas for their children while the children are younger than 21, the per-country caps force families to choose between separating and sending their children back to their country-of-origin as they age out of their visas while the parents keep waiting in the United States for a green card, or to give up entirely on their dreams of becoming lawful permanent residents… Because immigrants in the backlog are also severely limited in their ability to change jobs, the per-country caps often force them to work under conditions that other employees would find unacceptable. This exposes these immigrants to harassment, exploitation, and abuse without any option of switching employers. What’s more, because these employees can’t change jobs, they have less power to negotiate fair salaries, which depresses wages not only for the immigrant workers themselves, but also for their American colleagues… We must eliminate the per-country caps 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.”

House sponsor Rep. Zoe Lofgren (D-CA) reintroduced this bill from the 115th Congress to alter the per-country limits for employment-based immigrants so that all people are treated equally, regardless of their country of birth: 

“We all know that our immigration system is severely broken, and it has been broken for decades. At the heart of this broken system are the outdated employment- and family-based immigration systems, which suffer under decades-long backlogs. In combination with the per country limits, these backlogs keep nuclear families apart for decades, while preventing U.S. employers from accessing and retaining the employees they need to stay competitive.  The Fairness for High-Skilled Immigrants Act begins to address these problems and makes the immigration system somewhat more rational. It is a small, but good step forward.”

Last Congress, Rep. Jason Chaffetz (R-UT) introduced this bill to fairly reward high-skilled workers in countries where they are long visa backlogs:

“I think we’re failing the people trying to come here legally and lawfully. Those are the people that suffer… [and] if you’re from India or China or Mexico, we often bump up against this cap literally within the first few days of a calendar year.”

In July 2017, after Rep. Chaffetz’s retirement, Rep. Kevin Yoder (R-KS) became the bill’s lead sponsor, after previously being an original cosponsor:

“I’ve always said that our nation is a nation of immigrants, as well as a nation of laws. This legislation strikes the perfect balance by achieving significant reforms of our employment-based green card system, helping American companies hire high-skilled immigrants to help grow our economy. Importantly, our bill helps them do it through the proper legal channels – the right way – which are all too often forgotten in debates over border security and illegal immigration. And it helps the many immigrants who are already living and working here on temporary visas obtain permanent residence they’ve earned through hard work and dedication to our country and its values, raising their families and children as Americans right here in our communities.”

The U.S. Chamber of Commerce is among a number of business groups that supports this bill. In a July 2019 letter, it wrote: 

“[This bill] would eliminate the per-country quotas that impact all employment-based immigrant visa petitions.  Currently, these quotas limit nationals from every country in the world to receive no more than 7% of the total amount of employment-based green cards issued annually.  In short, the quota for Iceland, which has a population of approximately 338,000 people, is the same as India, with a population of roughly 1.338 billion people. These quotas cause a significant amount of uncertainty for employers that hire highly-skilled, highly-educated immigrant workers that were born in India and China. Oftentimes, workers from these two countries wait for years, and in many cases, decades, to receive their green cards. During that period of time, these arbitrary caps on visa issuance hamstring the ability of employers to promote their immigrant workers to new roles within their companies. This policy is neither fair nor wise; eliminating these caps would provide much needed relief for companies and their workers.”

Aman Kapoor, Co-Founder and President of Immigration Voice, calls this bill a "win-win for the American people":

"The Fairness for High Skilled Immigrants Act is a win-win for the American people. It would help to grow our economy by allowing highly skilled immigrants to start their own companies and hire American workers.  And, it will finally remove the last vestiges of discrimination from our high-skilled immigration system. We are incredibly grateful Chairwoman Lofgren and Ranking Member Buck for their leadership and are confident that this will be the year the bill will pass.”

Compete America and FWD.us support this bill. FWD.us’ President, Todd Schulte, said last year:

“Under the current system, no more than 7 percent of employment-based green cards are conferred to highly-skilled workers from any one country. The proposed bill would make it possible for the United States to continue attracting the best and the brightest scientists, engineers, architects and researchers without discriminating against applicants because of where they were born. H.R. 392 is a sensible step toward building a targeted high-skilled immigration system that will help us win the global race for talent, create millions of American jobs and boost wages for the middle class in the 21st century economy.”

In an op-ed in The Hill, former Rep. Virgil Goode (R-VA), who represented Virgina’s 5th Congressional District from 1997-2009, argued that this bill is bad for American high-skilled workers: 

“Silicon Valley says it loves diversity, but the industry only wants workers from one country — and it’s not America. An estimated 71 percent of the workforce in Silicon Valley is foreign-born. The majority are Indian nationals; nearly 70 percent of those who come on H-1B visas — a favorite of Big Tech — hail from India. Additionally, many tech firms have a sizable presence in India itself. And the reason tech giants love Indian-born workers? They tend to work for far less than American workers. Unfortunately, Congress wants to advance Silicon Valley’s lack of diversity. The Fairness for High-Skilled Immigrants Act would eliminate country caps on immigration and allow Indians to monopolize the share of green cards. It’s estimated that Indians would take at least 75 percent of all employment-based visas if the bill passes. The bill’s supporters, including Utah Sen. Mike Lee, said the bill would make our immigration system more fair. But letting one or two nationalities monopolize employment visas is fair to no one… This bill is great for Silicon Valley, but bad for high-skilled American workers. As OpenSecrets reported, ‘a significant portion of the lobbying done in favor of’ the bill ‘was bankrolled by tech companies.’ With this act, foreign-born workers would make up an even greater share of the tech workforce, for half the pay, and Americans with STEM degrees would get the short end of the stick… Unlike Big Tech’s workforce, the country caps strive for diversity and prevent one nationality from dominating our immigration system. Silicon Valley giants frequently preach empty platitudes about the value of diversity for employees and customers. However, seeking primarily foreign-born Indian tech workers is not diverse. A truly diverse workforce would be one made up of American citizens from many different backgrounds. Silicon Valley's workforce does not promote America’s best interests, and exposes the hypocrisy of its platitudes. Congress should encourage Big Tech to change its ways. We should insist these companies hire Americans before recruiting cheap labor from one part of the world. What’s the point in an American getting a STEM degree if our tech corporations won’t hire Americans?”

Writing for Foreign Policy, Maziar Motamedi, a Tehran-based journalist, argues that this bill would harm highly skilled immigrants from smaller nations, such as Iran: 

"[This bill would] prove a boon almost exclusively to employment-based immigrants from India and China; smaller countries will suffer... Proponents mainly argue that removing the per-country numerical cap can solve a major backlog problem that is exacerbated by the country caps and adversely affects Indian employment-based immigrants the most because so many of them are seeking permanent residency. More than 306,000 Indians and 67,000 Chinese immigrants were waiting in the employment-based green-card queue, according to USCIS figures reported in May. If it becomes law, the bill will most probably mean that the majority of employment-based green cards issued in the next decade will go to people from India... H.R. 392 means systemic bias toward employment-based immigrants from every other country. Yes, there is no denying that the current system is very hard on legal working immigrants from India, and to a lesser degree China, who are forced to wait for long periods... However, if the majority of employment-based green cards issued in the next decade go to people from India and China, it will mean easing the burden on one or two countries by transferring it onto the shoulders of thousands of immigrants from dozens of other countries, which hardly seems like a fair and logical solution. U.S. lawmakers would be better advised to pursue wider immigration reform that does not brazenly punish one or several groups to the benefit of others."

NumbersUSA, the nation’s largest interest group supporting reduced levels of immigration, hasn’t taken a position on this bill’s previous iterations since it will not change overall immigration levels.

This bill has 34 bipartisan Senate cosponsors, including 19 Republicans and 15 Democrats. Its House version, sponsored by Rep. Zoe Lofgren (D-CA), has passed the House by a 365-65 vote with the support of 311 bipartisan House cosponsors, including 203 Democrats and 108 Republicans.

In early July 2019, Sens. Lee and Grassley struck a deal on H-1B oversight and enforcement that was expected to clear the path for this bill’s passage. However, Sen. Rand Paul (R-KY), who’d previously cosponsored this bill in the 115th Congress, blocked this bill when Sen. Lee tried to bring it to the floor. Sen. Paul said he’d “offered a modest compromise amendment” to create a visa carve-out for nurses, who advocates say would be shut out of green cards were this bill to pass, and that “better dialogue” was needed before a floor vote. 

Responding to Sen. Paul on the Senate floor, Sen. Lee argued that the nurse amendment isn’t compatible with this bill and would effectively kill it. Sen. Lee’s spokesman, Conn Carroll, added that allowing a carve-out for one profession would likely draw similar requests from other legislators championing other professions, making this bill bigger and broader than can support the consensus needed for passage.

In the 115th Congress, this bill had 329 bipartisan cosponsors, including 176 Democrats and 153 Republicans, but didn't receive a committee vote. A Senate version of this bill in the 115th Congress, sponsored by Sen. Mike Lee (R-UT), had 20 bipartisan cosponsors, including 10 Democrats and 10 Republicans, and also didn't receive a committee vote.

An identical version of this bill passed the House during the 112th Congress with a bipartisan vote of 389 to 15. Subsequent versions were introduced in the 113th (HR 633) and 114th (HR 213) Congresses, but didn’t receive a vote.

This bill has the support of Immigration Voice, New American Economy, the Semiconductor Industry Association (SIA), the Republican Hindu Coalition, Compete America, Skilled Immigrants in America, the U.S. Chamber of Commerce, Immigration Voice (a group of Indian contract workers) and large tech companies (including Microsoft, Texas Instruments, IBM, Amazon and Bangalore-based tech-giant Infosys).

The American Hospital Association opposes this bill because it would threaten the annual inflow of roughly 7,000 foreign nurses — while the Nigerian-American Multi-Services Association (NAMSA USA), All of Us, and groups representing African and Iranian graduates also oppose the bill. 


Of Note: Under the current immigration system, immigrants from any one country can claim no more than 7% of the 140,000 employment-based green cards issued annually to foreign nationals working in the U.S. This significantly disadvantages immigrants from larger countries that more immigrants come from.

For example, China (population 1.3 billion) and India have large backlogs of workers wishing to immigrate to and work in the U.S., but they have the name visa caps as countries such as Iceland or Estonia (population 1.3 million), which have both much smaller populations and far fewer citizens seeking to immigrate to the U.S.

The net effect of this is that immigrants from India and China can face decades-long waits, averaging 2-3 times the wait times for immigrants from other countries, for green cards, and many have to return home because they can’t get permanent residency; meanwhile, countries such as Iceland and Estonia never come close to reaching their visa limit caps. By some estimates, Indians applying for green cards today could wait for 150 years or more for green cards that they've already earned, simply because many Indians are already employed in the U.S.


Media:

Summary by Lorelei Yang

(Photo Credit: brazzo / iStock)