The U.S. Capitol. The new Congress began with hope for a lasting solution to the green card backlog ... [+]
The new Congress began with hope for a lasting solution to the employment-based green card backlog problem but may soon end with no solution at all. What happened?
Economists have found foreign-born scientists and engineers are vital to the competitiveness of companies in the United States and the American economy. “The ability to recruit global talent is a key factor that has contributed to U.S. leadership in science and research,” according to the MIT Science and Policy Review. “This talent has been vital for the development of U.S. science and responsible for numerous discoveries and innovations that have improved quality of life.” At U.S. universities, international students account for 74% of the full-time graduate students in electrical engineering and 72% in computer and information sciences as well as 50% to 70% in fields that include mathematics and materials sciences.
Due to a low annual limit on employment-based green cards and a per-country limit of 7% from a single country, the Congressional Research Service (CRS) estimates that more than 2 million people from India will be waiting in the U.S. employment-based immigrant backlog by 2030. Many foreign-born scientists and engineers will potentially wait decades before gaining permanent residence and a chance to become U.S. citizens.
The impact on competitiveness is significant. At U.S. universities, Indian graduate students in science and engineering declined by nearly 40%, between 2016 and 2019, according to a National Foundation for American Policy (NFAP) analysis. “During the same period (2016 to 2019), Indian students attending Canadian colleges and universities increased 182%. The difference in enrollment trends is largely a result of it being much easier for Indian students to work after graduation and become permanent residents in Canada compared to the United States.” Chinese student interest in attending U.S. universities has also declined.
In February 2021, the U.S. Citizenship Act (H.R. 1177), developed by the Biden administration, was introduced in Congress. The bill contained many immigration provisions and would have put an end to the employment-based immigrant backlog within 10 years. It included a higher annual green card limit, eliminated the per-country limit, provided permanent residence for those waiting with an approved immigrant petition for 10 years and excluded dependents from being counted against the annual limit. (See here.) It also would have exempted individuals with Ph.D.s in STEM (science, technology, engineering and math) fields from numerical limits.
Due to GOP opposition and the 60-vote filibuster threshold in the Senate, the U.S. Citizenship Act turned out to be a messaging or placeholder bill that did not move in Congress. To obtain green card relief, a different measure would need to become law.
The America COMPETES (CHIPS) Act
The best opportunity for employment-based immigration looked like legislation aimed at enhancing U.S. competitiveness in semiconductors. On February 4, 2022, the U.S. House of Representatives passed the America COMPETES Act 222 to 210. The bill contained several immigration provisions but garnered only one Republican vote. In June 2021, the Senate passed a similar bill without any immigration measures.
The House bill created an exemption from annual green card limits and backlogs for foreign nationals with a Ph.D. in STEM fields and those with a master’s degree “in a critical industry,” such as semiconductors. The bill also included Rep. Zoe Lofgren’s (D-CA) LIKE Act to give foreign-born entrepreneurs an opportunity to earn lawful permanent residence. A recent NFAP report on immigrant founders of billion-dollar companies concluded many innovations only become useful through entrepreneurship.
During a House-Senate conference committee, Rep. Lofgren urged the Senate to accept the House’s immigrant measures. The Biden administration, businesses and universities wanted to see, at minimum, the exemption for individuals with Ph.D.s in STEM fields become law.
The exemption for STEM Ph.D.s was likely doomed the moment Senate Republican Leader Mitch McConnell (R-KY) appointed Sen. Charles Grassley (R-IA) to the bill’s conference committee. McConnell gave Grassley, the ranking Republican member on the Senate Judiciary Committee, a veto, in effect, over any immigration provision. Over several months, he exercised that veto and no group of Senate Republicans stepped forward to prevent it.
In June 2022, Grassley asserted he was against including immigration measures in a non-immigration bill. Critics pointed out Grassley had no problem, indeed lauded, including a restrictive measure on EB-5 immigrant investor visas in a non-immigration bill only a few months earlier (March 2022). It appeared evident that Grassley opposed any liberalization of U.S. immigration laws, no matter how beneficial economists and others believed a specific provision would be for the country and claimed a procedural reason.
Senate Democrats approached Grassley with iterations of the Ph.D. STEM provision, but he refused to budge, according to sources. He did not vote for final passage or the motion to proceed to the bill on the Senate floor (a 64 to 34 vote) but got his way on the legislation. The final bill included no measures to exempt Ph.D.s in STEM fields from green card limits or any other significant positive immigration provision. (The legislation was H.R. 4346, renamed the CHIPS Act of 2022.)
A letter (July 27, 2022) to House and Senate leaders from the chief human resource officers of leading semiconductor companies called on Congress to admit more high-tech talent: “We are writing to you about an underappreciated but vital issue for both our economy and national security interest: the need for more talented and highly skilled individuals to fill the immediate labor demand of the technology industry. Workers with advanced education and knowledge in cutting-edge technical areas, specifically in science, technology and engineering (STEM) fields, are the fuel that will propel our economy and country into the next industrial and technological era.”
Budget Reconciliation
Another legislative vehicle, a budget reconciliation bill, became law without any measures to relieve the green card backlog or make other positive immigration changes. For months, Democrats in Congress talked about using budget reconciliation to enact immigration reforms. The reconciliation process overcomes Senate filibuster rules by allowing passage with a simple majority. However, under Congressional rules, reconciliation can only include certain measures.
The Senate parliamentarian advised in late 2021 that including provisions to legalize undocumented immigrants in a budget reconciliation bill would violate Senate rules. Senate Democrats also gave green card backlog reduction language informally to the Senate parliamentarian, but she did not provide a ruling on it, according to a Congressional source.
Immigration reform supporters pointed to language recapturing unused employment-based green cards that became law in budget reconciliation in 2005. However, the Senate parliamentarian said, according to the Congressional source, that the earlier parliamentarian never approved that language and it was allowed because nobody at the time raised a budget point of order since the provision was supported on a bipartisan basis.
In that context, it becomes clearer why, at different times, Sen. Richard Durbin (D-IL) and Sen. Bob Menendez (D-NJ) threw cold water on the idea of including green card provisions in reconciliation. A Senate parliamentarian’s advice can be overcome by a vote but Sen. Durbin indicated getting all Senate Democrats to vote against a parliamentarian’s ruling on immigration was not “realistic.”
The issue appeared to be moot until Sen. Joe Manchin (D-WV) reached a deal with other Democrats and the reconciliation bill became the Inflation Reduction Act. The bill passed Congress without any green card measures. Senate Democrats voted against all amendments to the legislation, including those that would have restricted access to asylum via the public health measure Title 42.
Based on Sen. Durbin’s earlier statement, it seems unlikely Sen. Manchin or Sen. Kyrsten Sinema (D-AZ) would have supported including green card recapture in the bill if, as appears probable, the current Senate parliamentarian advised the measure would violate budget reconciliation rules. Note also Senate Majority Leader Chuck Schumer (D-NY) adopted a strategy of zeroing out spending within the Judiciary Committee’s jurisdiction to force Republican amendments on immigration to meet a 60-vote margin for germaneness. (Title 42 did not fall within the Judiciary Committee’s jurisdiction.)
Other Legislation
Another legislative vehicle emerged due to international events. After Russia invaded Ukraine in February 2022, a weak point for the Putin regime was its ability (or inability) to keep high-skilled technical talent living and working inside Russia. Washington Post columnist Catherine Rampell recommended using legislation to “Drain Putin’s Brains.”
In a letter to the House on April 28, 2022, the Biden administration provided legislative language on Russian scientists and engineers as part of the FY 2022 emergency supplemental funding for Ukraine. The language would have allowed Russians with a master’s or doctoral degree in a STEM field to obtain permanent residence (a green card) without a backlog or employer sponsorship.
The emergency supplemental for Ukraine passed Congress without any non-spending measures, including the provision for Russian scientists and engineers.
In July 2022, hopes were high the FY 2023 defense authorization bill would include an amendment on green cards for individuals with Ph.D.s in science and engineering. In what has become a familiar story, it was not to be.
“According to a Congressional source, the House Rules Committee did not rule the amendment in order because the Congressional Budget Office (CBO) said the provision would cost $1 billion over 10 years,” as reported in July. “To address the issue and offset the cost, a $7,500 fee was added for the individuals who received permanent residence under the provision. However, the House Ways and Means Committee said the fee could not be included because it amounted to a tax and, therefore, violated Clause 5(a) of Rule 21 of the rules of the House of Representatives.”
It is unclear how CBO determined the $1 billion cost and how advocates can address the issues raised by the CBO score in the future. There is no word about adding the provision to the Senate’s defense bill.
A few bills related to employment-based immigration remain in play in Congress. On June 7, 2022, H.R. 3648, the Eagle Act of 2022, was reported out of the House Judiciary Committee on a 22-14 vote. The bill would eliminate the per-country limit for employment-based immigrants, with a phase-in period. It also would add new restrictions and requirements on H-1B visas, raise the per-country limit on family applicants from 7% to 15%, provide protection to children from aging out on a parent’s application and allow for adjustment of status within two years of an approved employment petition. Individuals would receive work authorization and advance parole for travel purposes.
In the House defense authorization bill, an amendment was included by Rep. Deborah K. Ross (D-NC) and Rep. Mariannette Miller-Meeks (R-IA) to “protect dependent children of green card applicants and employment-based nonimmigrants who face deportation when they age out of dependent status,” reported Roll Call. Sen. Alex Padilla (D-CA) and Sen. Rand Paul (R-KY) introduced the America’s Children Act, the Senate companion. The measure in the defense authorization bill would need to pass in the Senate to become law. (See here for more on this issue.) Sen. Grassley said in an August 2022 town hall meeting the measure could be included in an omnibus or the defense bill “if we can get bipartisan agreement,” which is positive but short of a personal commitment to support the legislation.
In June 2022, in the House Appropriations Committee, an amendment was added to the House Homeland Security spending bill to provide relief for individuals waiting for green cards in the family and employment-based backlog. The amendment authorizes using unused green cards going back to 1992, per Bloomberg Government. “The language of the amendment (see here) . . . means tens of thousands of individuals waiting in the employment-based immigrant backlog would benefit, as well as individuals waiting in family backlogs,” as reported in this Forbes article in June.
The Senate Appropriations bill for FY 2023 for Homeland Security also contains green card measures for those waiting in family and employment backlogs. The House and Senate green card measures face significant obstacles since non-spending provisions face a high hurdle to remain in a spending bill.
Blocking High-Skilled Immigrants
House and Senate Democrats and the Biden administration have supported or proposed several bills and measures to reduce the employment-based green card backlogs and exempt highly skilled foreign nationals from immigration quotas. Senate Democrats did not sacrifice a chance to pass the CHIPS Act after Sen. Grassley opposed including a STEM Ph.D. exemption.
Republicans in Congress in a position to influence legislative outcomes are now opposing any positive measures on legal immigration. As one executive of a leading technology company told me, “If there are people in Congress who aren’t going to support more green cards for Ph.D.s in STEM fields, what will they support?”
