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The Fairness for High-Skilled Immigrants Act of 2019

I have read over the Fairness for High-Skilled Immigrants Act of 2019. It’s very short, but tedious, as most amending legislation is. It makes some interesting changes to current law and then sort of shoots itself in the head. Here is the gist of it.

Currently, about 140,000 employment-based immigrant visas (i.e., employment-based green cards) are available per year by statute. Each country has a 7% cap. To be more exact, an applicant is categorized according to the country they were born in. We call that "chargeability." And among those country-based categories, no one group can get more than 7% of the 140,000 visas. However, specific countries (namely India, China, and the Philippines) are responsible for the vast majority of all applicants and other countries (like France) provide very few.

The U.S. government tries to predict when those countries are going to hit their limit and then sets priority dates, essentially as an artificial choke to limit the number of applications to the number of visas that can actually be issued. For example, if India is entitled to 9800 immigrant visas but there are 50,000 people eligible to apply, the government will say you can only apply if you took a ticket back in, say, 2009. If they do the math right, there will be precisely as many applications in a given year as there are visas available. If they get the math wrong (as happened in 2018), then they can run out of visas before the year ends.

The upshot of the 7% country caps and the fact that the vast majority of applicants come from only three countries is that a lot of people have had immigrant visa petitions approved but have been waiting for a very long time for their green cards and will continue to wait. It has been estimated that Indians filing in the second and third employment-based categories today may receive their green cards in about 50 years. In contrast, an applicant born in Canada could apply today and have his green card in six months.

The new legislation (which passed the House with strong support in both parties) eliminates the 7% cap entirely, thereby essentially flipping the line. With just this change, those who have waited the longest (mostly Indians) would move from the back to the front. Those who have just applied would go all the way to the back (possibly Canadians now waiting 20 years?) and those in the middle of the line would remain in the middle.

However, other provisions ensure that the change would not be so stark. In the first year of implementation, 15% of the total available visas are reserved for applicants from anywhere but the top two countries (so anyone from anywhere except either India + China or India + Philippines, depending on the numbers). In the 2nd and 3rd year, this reserve drops to 10%.

But then there is an odd backtracking provision called the “Transition Rule for Currently Approved Beneficiaries.” Essentially what this does is preserve the current line for anyone already in the current line who would benefit more from the current line than the proposed new line.

So, in other words, anyone (like those Canadians) who would have gone from a six-month wait to a 20 year wait can presumably still have their six-month wait. Which makes no sense because the legislation is not increasing the total number of available visas. So this provision would seem to reverse the line yet again. All those Indians who filed back in 2009, who were supposed to be put in the front of the line, now go back behind anyone who would be disadvantaged by the new rule. But presumably everyone who is currently in front of those Indians would be disadvantaged by having a bunch of Indians go in front of them (a queue is a zero sum game, after all) so now those applicants get to be back in front. And we would be right back where we started, at least for the population who is supposed to reap the benefit of the legislation.

The effect of these rules going forward, however, would be more equitable. If Indians now face a fifty year wait and Canadians a six-month wait, and all those waiting times get averaged out without regard to country of birth, it may be the case that all future applicants may face something like a 3 year wait or a 5 year wait. That’s totally a guess. It’s a very complicated math problem but it would be something less than 50 years and more than six months.

So in general, good for the Indians and the Chinese and the Filipinos, less good for the Canadians and everyone else. One final note is that the Transition Rules would be an absolute nightmare to apply. Predicting priority dates is already the most confusing aspect of immigration law (no small achievement). The new law would add a double layer of complexity because in addition to keeping track of shifting priority dates on the new chart (with no 7% caps), an immigrant also has to keep track of what his priority date would have been on the old chart “had this Act not been enacted.” But will the old chart continue to be issued on a month-by-month basis? This seems unlikely since the priority dates would be meaningless. It would be like if your stock value were calculated as the higher of the current stock market rate or an unknown rate in a divergent parallel universe.

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