Increasing the Number of Green Cards will not Solve the Backlog

Last month, rumors swirled that, on Thursday, Sept. 26, Sen. Mike Lee (R-Utah) would make a second pass at seeking unanimous consent for S. 386, the “Fairness for High-Skilled Immigrants Act.” Previously, in July, Sen. Lee made an unsuccessful attempt to seek unanimous consent for the bill.

It was a surprise, then, that Lee’s second unanimous consent attempt never happened. Why?

In large part, it is thanks to the strong grassroots efforts of the bill’s opponents. On the morning of Sept. 26, large groups of non-Indian foreign nationals as well as representatives from U.S. Tech Workers assembled in the halls of the Senate to express their principled opposition to both the substance of S. 386 and the proposed passage of such a large change to U.S. immigration law through the opaque mechanism of unanimous consent. The group had also gathered in Capitol Hill that morning to meet with Sen. Dick Durbin (D-Illinois) and urge him to intercede. Sen. Durbin had previously expressed concerns about the bill’s deleterious impacts, suggesting he might object should the bill be brought to the Senate floor for a unanimous consent vote.

Specifically, Durbin had noted apprehension about the practical effects of S. 386, which would remove country cap quotas for employment-based Green Cards, and result in a single nation, India, effectively monopolizing all available employment Green Cards for roughly the next decade. This would disproportionately harm would-be immigrants from all other countries, because these immigrants would suddenly find themselves in a large backlog with lengthy wait times (10 to 12 years), to which they are not subject under the current rules.

Durbin recently told The Wall Street Journal that S. 386 would increase “immigration from countries like India a marginal small amount at the expense of cutting back on immigration from other countries in a much more dramatic fashion – I don’t think there’s equity in that.”

Durbin’s remarks about the bill’s impacts are correct.  During an open “Constituent Coffee” event held Sept. 26, Durbin suggested the best solution to Indian immigrants’ backlog crisis would be to INCREASE the overall number of employment Green Cards issued. This echoes the approach taken in the proposed bill from Sen. Rand Paul (R-Kentucky), the Believe Act, which would also remove country caps while raising the numerical limit of employment-based Green Cards from 140,000 to 270,000 annually.

An advocacy group called Support All Of Us, which was initially spearheaded by Iranian nationals and is advised by lobbyist Bruce Morrison (architect of the H-1B visa program) and his assistant, Paul Donnelly, also believes that increasing the number of Green Cards would make everyone happy and solve the problem.

However, there are several key problems with the assumption that simply increasing the overall number of employment-based Green Cards will be a magic bullet. First, it does not address the root cause of the massive backlog for Indian nationals in the first place – H-1B visa abuse! Second, it would reward the very abusers who gamed and exploited the H-1B visa program, and incentivize further abuse.

Finally, it would not even solve the backlog issue, because, at some point, demand for employment Green Cards is likely to again exceed supply, not least of which would be due to the problematic dual-intent nature of the H-1B visa program.

Ultimately, proposals to remove country caps, increase total Green Card numbers, or both, all only address surface symptoms, and do not resolve the root of the backlog problem. Until the H-1B visa program is reformed to sufficiently protect American workers and to close the gaping loopholes that allow bad faith actors to easily “game” the system, changes to our Green Card system will be meaningless, and any relief these changes initially offer, short-lived.