IABA Statement on the Fairness for High-Skilled Immigrants Act

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IABA opposes the Fairness for High-Skilled Immigrants Act (“H.R. 1044/S. 386” or “the Bill”), as passed by the Senate on December 2, 2020, due to the detrimental impact it will have on diversity in employment-based immigration, visa backlogs (including a particular impact on Iranian nationals), and provisions that amount to national origin discrimination against Chinese nationals.  IABA urges Congress to take its time to assess the impacts of this legislation, adopt a comprehensive and fair solution to the existing employment-based immigrant visa backlogs, and ensure they do not build into our laws any further discrimination against a minority group.
The current version of the Bill is significantly different from the version passed by the House of Representatives in 2019, and as such will need to undergo bicameral reconciliation before being presented to the president to be signed.  This helpful summary from the American Immigration Lawyers Association (“AILA”) details the various provisions of the Bill, including proposed changes to family-based immigration petitions (Section 2), and the H-1B process (Sections 3, 4, 5, and 8).  Notably, Section 2, proposing elimination of country caps, and Section 9, targeting Chinese nationals, are of particular concern.
As context for Section 2, over 1 million individuals and accompanying family members, lawfully residing in the United States (“U.S.”), have been approved for but are awaiting employment based permanent residency (also known as a “green card”).  This backlog is because the number of foreign nationals sponsored by U.S. employers far exceeds the 7% per country “cap” in the Immigration and Nationality Act (“INA”).  The backlog has significant impacts on those waiting in line for years, often decades, to receive a green card.  During this extended waiting period, individuals are often unable to switch jobs, are passed over for job offers, are often unable to return to their home countries, and their dependent children “age out” for benefits.
While this Bill attempts to alleviate this backlog, the proposed elimination of the per country caps is not an equitable solution.  The Bill will not comprehensively fix the green card backlog, it will just reduce diversity by allowing for processing of cases from a few countries to dominate employment-based immigration, at the expense of multiple other communities, thereby pitting different immigrant groups against each other.  So while this would benefit some immigrants from countries experiencing existing visa backlogs, others would experience new prohibitively long additional wait times.  For example, as currently drafted, the Bill could possibly add 10 years in additional processing time for nationals from Iran and other countries.  For Iranian nationals, this Bill, coupled with the Travel Ban and other recent changes to immigration law, can severely limit the options to immigrate or remain in the U.S., thereby also affects Iranian Americans seeking to reunite with their families and loved ones after years of impact by the Travel Ban.
Furthermore, Section 9 of the Bill, specifically targets Chinese nationals, and would bar a significant number of individuals from becoming green card holders and U.S. citizens.  Section 9 has been opposed by immigration experts and civil rights organizations because it falsely equates national origin and mandatory military service with national security concerns.  Not only does the INA prohibit discrimination based on national origin, but immigration applications already require applicants to disclose any government or military affiliations.  IABA opposes national origin discrimination — or any proxy for it — and supports the call from civil and immigrant rights organizations urging Congress to amend or repeal Section 9 altogether.
As we enter 2021, several efforts to fix immigration laws and policies are in place.  This includes calls to repeal the Travel Ban, Refugee Ban, and Asylum Ban; fix the refugee admission policies; and pass the Temporary Family Visitation Act.  Given the many inequitable immigration policies of the last four years, it is imperative that Congress and the Executive Branch take the time to come up with a fair and comprehensive solution to addressing barriers, backlogs, and ensure that no further discrimination is enshrined in our laws or policies.
IABA will continue to update or membership on these important issues, as well as share resources as immigration laws and policies are enacted and/or repealed.

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