The Hill (Op-ed)
By David Bier
May 5, 2016
For the fourth year in a row, the annual quota on H-1B visas, which allow high-skilled foreigners to work legally in the United States, was filled in a matter of days. While the mark demonstrates the need for more visas, Congress should tie increases to reforms to the H-1B process to better protect the rights of foreign workers, and reward them for their positive contributions to the economy. Improving the system would prove beneficial not only for immigrants, but also for Americans.
If you're a highly skilled, well-educated foreign worker, the H1-B visa offers this deal: If an employer obtains an H-1B for you, you can work for up to six years in the United States. And if an employer wants to hire you long-term, you can apply for a green card and stay permanently.
But here is the fine print: Since 2000, the Department of Homeland Security issued roughly half as many green cards to foreign workers in the United States as it issued H-1Bs. This means that the green card system has becomes backlogged with H-1B workers who are waiting for a green card. Many are forced to wait for years.
To make matters worse, Congress limits residents of a given country to no more than 7 percent of the total number of green cards available in a given year. This vestige of race-based immigration quotas means that H1-B holders from populous countries that produce many skilled workers have much longer wait times than those from countries that export less talent. If you are a college graduate from India, you can expect to wait decades for a green card.
Instead of a first-come, first-served process that considers the value of talent and the needs of the American workforce, current policy mechanically discriminates against some immigrants simply because they come from a populous country. It has no rational basis.
The executive branch has made the situation worse. Since 1990, the federal government, due to poor planning and processing delays, simply failed to issue roughly a half a million of the green cards that Congress had authorized for those years. The year ended before they sent out all of the green cards Congress required, throwing into the backlog many people who should already be permanent residents.
Worse still, the administration continues to erroneously count family members accompanying high-skilled workers against the green card limit. According to the relevant law, the green card limit applies specifically to foreign workers, but not to their families. Spouses and children, the law clearly states, shall "be entitled to the same status, and the same order of consideration" as the workers, but nowhere does it subject them to the limit.
The result of this restriction is that there are roughly half as many green cards issued to workers as have been authorized by Congress. If the administration correctly implemented the statute, the unused green cards were recaptured, and Congress repealed the per-country limit, the problem of visa backlogs would largely disappear.
The backlog is particularly problematic because H-1B workers waiting for a green card have limited legal rights. Their spouses and children cannot work. They cannot even launch a new business or get hired by a company in which they have partial ownership. Astonishingly, if H-1B visa holders walk away from a bad employer without a new job already lined up, they lose their legal work status, their place in the green card line and their right to be in the country.
These conditions also hold negative consequences for U.S. workers. Since H-1B holders cannot simply leave their jobs, skilled foreign workers are forced to negotiate from a position of weakness. For certain unscrupulous employers, this can make H-1Bs more attractive than U.S. workers who can leave for better offers. If we allow H1-B workers to leave a job for a better one, they cannot be paid below market wages, equalizing the playing field for Americans.
Some lawmakers advocate simply abolishing the H-1B visa and making green cards more available. The problem with this proposal is that 95 percent of all high-skilled green card recipients came to the United States with an H-1B or other similar work visa. The H-1B is the gateway to America. If Congress got rid of the H-1B, it would effectively destroy the high-skilled legal immigration system.
America needs H-1B workers. They have made incredibly positive contributions to America's economy and culture. Forcing them to wait decades for a green card has no discernible benefit. We should recognize the contributions that H-1B workers make to our economy and society by protecting their rights.
Bier is director of immigration policy at the Niskanen Center, a libertarian nonprofit in Washington.
For more information, go to: www.beverlyhillsimmigrationlaw.com