How to Paralyze the Immigration System in One Ill-Conceived Step

A saying sometimes attributed to George W. Bush’s secretary of defense, Donald Rumsfeld, is, “If you can’t solve a problem, make it bigger.” The rationale behind the current effort to remove per-country caps on employment-based green cards may well be similar: If there’s a problem with part of the system, break the whole system.

Under current U.S. law, only 7 percent of many types of visas can go to immigrants from any one country. In theory, this is meant to prevent one or two countries from monopolizing all the visas. In practice, one country’s nationals can exceed the 7 percent cap if visas would otherwise be left unused; for instance, Indian nationals regularly use much more than 7 percent of the visas in the major employment categories. For most countries in the world, there is currently a minimal backlog of applicants seeking employment-based green cards. The big exceptions to that are India and China. According to the Congressional Research Service, an Indian national seeking green-card status under EB1 (the highest-priority employment-based visa category) could wait eight years; someone from Kenya would wait a year or less.

Earlier this month, a bill that would remove the per-country caps passed the Senate. This bill would also create a new program allowing people with temporary visas to be granted an indefinite employment visa; make some reforms to the H-1B program; and potentially place more restrictions on the immigration of Chinese nationals. A somewhat different bill that would change the caps system has passed the House. Perhaps because of the differences between the two bills, cap-removal proponents are seeking to fold their desired policy changes into the omnibus spending bill that is currently being negotiated, rather than try to pass a separate bill before the end of this Congress.

Supporters of removing the caps argue that doing so would make the American immigration system more equitable. But it would also have significant structural consequences for employment-based immigration and the American economy. The version of the cap-reform bill evaluated by the CRS is slightly different from the one that passed the Senate, but the CRS report highlights the general effects of removing the per-country caps under the current employment-based immigration system. In essence, removing the caps would extend the waiting time for visa-seekers outside India and China while not actually reducing the size of the global backlog. If the caps are removed, the CRS estimates, the global wait time for immigrants seeking an EB1 visa would be seven years by 2030. The global wait time for those seeking an EB2 visa — the visa that covers many educated professionals — would reach 37 years by 2030.

This change would not affect all sectors of the economy equally. Under the cap-removal bill that passed the Senate, a major portion of employment-based green cards issued over the next decade would go to those who, having entered the country in recent years to work for technology conglomerates, already hold H-1B and other temporary visas. Unsurprisingly, Silicon Valley has been a major proponent of removing the caps. The Congressional Research Service raises the possibility that doing so could benefit the IT sector “at the expense of other industrial sectors that are also critical to the United States.” In other words, it could help the tech sector clear its green-card backlog, but it might also hamper the ability of other kinds of employers to recruit immigrants with employment-based visas. Universities, pharmaceutical companies, the art and entertainment industries, and other economic sectors might face new struggles recruiting talent abroad, because the global employment-based green-card backlog for other countries (and other economic sectors) would be much longer.

Further complicating things is procedure. Rather than trying to pass the cap-removal bill as a stand-alone measure in which pros and cons can be openly debated, its supporters are reportedly attempting to bundle it into the massive, year-end omnibus spending bill. In the past, Senator Mike Lee and others have condemned efforts to use the omnibus bill as a vehicle for passing a buffet of substantive legislation. While the Senate cap-removal bill includes some promising provisions (such as tightening rules on H-1B), it also has a lot of moving parts that could substantially disrupt the employment dynamics of sectors across the country, and it remains unclear which of these parts would be included in the omnibus. That is worrisome because omnibus negotiations are typically conducted in rushed secrecy, forcing legislators to vote quickly on a massive package before they’ve had time to dig into its details.

Neither the House nor Senate bills would reform the legal-immigration system so that removing the caps did not lead to a globalized backlog for green cards. Currently, there are large backlogs of Chinese and Indian applicants for employment-based green cards, the effects of which fall disproportionately on the tech sector. Removing the caps would create large backlogs of visa-seekers from all over the world, the effects of which would be felt by many different industries. Some proponents of eliminating the caps have indicated that they think a globalized paralysis of the employment-based immigration system would be strategically advantageous, because it would create more pressure to increase the number of employment-based green cards. But inviting crisis in order to encourage reform would be risky; immigration politics are so contentious that there’s no guarantee reforms would actually materialize. And if they don’t, a sustained global green-card backlog could further incentivize the use of guest-worker programs.

The omnibus legislation, then, might have significant implications for employment-based immigration in the years ahead. It might also reveal something about the positioning of congressional Republicans. Criticizing Big Tech has become a go-to move among many Hill Republicans, so it would be ironic if GOP leadership signed off on a policy that prioritized the interests of Silicon Valley over the stability of the broader economy and the American immigration system.