Senate Gives a Glimmer of Hope for High-Skilled Indians Stuck in Green Card Backlog

In a landmark decision, the U.S. Senate unanimously passed the Fairness for High-Skilled Workers Act (S.386) on Dec 2, aimed at clearing a backlog of green cards for primarily Indian high skilled workers, aiming to do away with country caps on employment-based green cards. This resolution comes after more than a year of wrangling, following the House passage of a similar bill on July 10, 2019 — by a bipartisan 365 to 65 votes. And with Trump’s well-known anti-immigration stance, S.386 has infused the Indian diaspora, stuck for decades in a green card backlog, with renewed hope.

“This is indeed good news, and I am cautiously optimistic,” says Atlanta-based techie (name withheld on request), who has been waiting for his green card to be processed for over 10 years.

According to a report in the Wall Street Journal, the bill lifts the 7 percent country cap on the number of employment-based immigrant visas, commonly known as green cards, awarded to immigrants from any one country who come to the U.S. with job offers. This will allow people who have waited in the backlog the longest — primarily Indian applicants on H-1B high-skill visas — to receive green cards first under a revamped system.

In addition, it also increases the per-country cap on family-based immigrant visas from the current 7 percent of the total number of such visas available in a particular year to 15 percent.

The version passed by the Senate also stipulates that in years one-nine after implementation, no more than 70 percent of the green cards can go to H-1 visa holders and their dependents. This drops to 50 percent from year 10. 

S.386 also sets down transition rules by reserving a percentage of EB2 (workers with advanced degrees or exceptional ability) and EB-3 (skilled and other workers) immigrant visas for those who are not from India and China. This transition has been built in to avoid Indians and Chinese dominating the allocation of green cards, once the country caps are lifted. The reservations will be higher in the initial years. To illustrate, in the rest year after enactment, 30 percent of EB-2 and EB-3 visas would be reserved for countries not affected by the backlog, or the ‘Rest of World’ (ROW) applicants. In years two and three, 25 percent and 20 percent respectively of EB-2 and EB-3 visas would be reserved for ROW applicants. Further, of the unreserved visas not more than 85 percent can be allotted to immigrants from any single country.

The other change says that no Chinese national (China being the other country with a huge green card backlog) affiliated with the Chinese Military or the Chinese Communist Party can enter the United States or be eligible to adjust visa status under any category. 

According to the U.S. Citizenship and Immigration Services’ (USCIS) new data that showed that the green card backlog for employment-based immigrants in 2020 has surpassed 1.2 million applicants — the highest number ever. 

There are over 800,000 Indians currently in line for an employment-based green card as of April 2020, according to the USCIS data.

From November 2019 to April 2020, the new data show that demand exceeded the number of green cards issued by more than 109,000. The monthly rate of increase in the backlog has tripled from the rate from 2018 to 2019. Despite the infusion of new green cards in 2021, Indian employer-sponsored applicants face an 8-decade long wait for green cards, and nearly 200,000 will die before they could even theoretically reach the front of the line.

An Atlanta resident in the design industry (name withheld on request), who started her green card journey in 2009 and has been waiting for 10 years to have it approved, says, “Removing the country cap drastically improves wait times,” but adds with a degree of pessimism, “but it has to go back to the House, then back to the Senate and then to the President for signing. So, I’m not sure what will come off this. But if it passes, it will definitely move people along, like me, who have been in queue for a while.”

Another victim of the green card backlog, Washington, D.C., resident Narain Murthy (name changed on request), who is in the financial sector says, “The backlog clearing would put to ease a decade log period of anxiety and uncertainty around both my professional and personal life. The green card opens up new possibilities around where I can live and work and also the opportunity to engage in other productive business ventures and opportunities.”

Neha Mahajan of Scotch Plains, New Jersey, is a Radio Mirchi jockey, mom and vice president for the not for profit group, ‘Skilled Immigrants in America.’ Her oldest child is a high schooler who will soon be applying to colleges. “Because she’s on an H-4 visa, she won’t be given a scholarship or other opportunities that citizens here get. The only reason is because she was born in India. That is so unfair. We have been living here for 12 plus years. My daughter was 2 when she got here. Had the immigration system been fair, and the green card process for an Indian been on equal footing with the rest of the world, she wouldn’t be in this situation. And we wouldn’t be struggling to keep our visa status afloat. With one job loss, we can literally be thrown out of the country. With the green card process moving so slowly, there’s a huge pressure on us that she will age out of the system. There’s no end in sight. We are living in limbo, which is why S-386 is so important for us.”

The most recent objection came from Sen. Rick Scott (R., Fla.), who inserted two measures backed by the White House. The first would impose a new cap of sorts for the next decade on the overall number of immigrants on H-1B visas who can receive green cards.

Speaking to American Kahani, Prakash Khatri, a Maryland-based attorney says, “Clearly, if the bill as passed by the House (H.R. 1044) in July 2019 was passed without amendments, it would dramatically improve the chances for earlier green cards for Indian nationals who have been waiting in line for so many years beyond what nationals of any other country have to wait.”

Sen. Kevin Cramer (R-N.D.), who presided over the Senate as this bi-partisan bill was passed, said in a series of tweets that because of the arbitrary per-country caps, the legal status of thousands of hard-working immigrants who bridge the gap between America’s workforce shortage and its immediate need for physicians, software developers, and other highly-skilled workers is constantly in jeopardy.

“The Fairness for High-Skilled Immigrants Act fixes that by — without increasing the number of employment-based visas — creating a more merit-based system that levels the playing field for high-skilled immigrants,” Sen. Cramer tweeted.

Sen. Cramer also tweeted that “Without these individuals, important services would be unavailable in many parts of our state, but because of arbitrary per-country caps, their legal status is constantly in jeopardy.”

Sen. Mike Lee (R-Utah), the bill’s sponsor, has attempted to bring up the country-caps bill on four previous occasions in the last year and a half, though each time a different senator objected, forcing Sen. Lee to alter the bill to meet specific demands. As a result, the bill that passed contains a small carve-out intended for nurses from the Philippines— a key demand from hospital groups backed by Sen. Rand Paul (R., Ky.) — and provisions imposing restrictions on companies that employ half their workers on H-1B visas.

The most recent objection came from Sen. Rick Scott (R., Fla.), who inserted two measures backed by the White House. The first would impose a new cap of sorts for the next decade on the overall number of immigrants on H-1B visas who can receive green cards.

In its press release, Immigration Voice, a U.S.-based not for profit, whose object is to alleviate problems faced by high-skilled workers said that S-386 creates a fair and equitable, ‘ first come, first serve’ system for receiving employment-based green cards, putting an end to the discriminatory quota system that has left over one million Indian high-skilled workers in the U.S. with decades-long line while individuals from other countries face no wait time at all to receive a green card.

Aman Kapoor, the co-founder and president of Immigration Voice stated that, “Immigration Voice is absolutely thrilled that after 15 years of tireless effort, the Fairness for High Skilled Immigrants Act has finally received the unanimous support of every member of the U.S. Senate. People are finally understanding that no matter what else is wrong with our immigration system, we can all agree that discrimination should never be a basis for deciding who is given access to permanent residency in the U.S.”

However, S.386 has come in for its share of criticism especially from associations representing American workers who have raised some concerns that the switch-over to a new system would harm applicants who aren’t Indian. A twitter handle @USTechWorkers, tweets, “S.386 isn’t about equal treatment. It takes an already flawed immigration program and exacerbates it even further to create an unequal system for everyone else. Worst of all, it rewards the abusers of the H-1B. The other provisions are meaningless and don’t protect Americans.”

A netizen, Researcher of Climate and Health@FromUniversity tweeted, “S.386 won’t fix the GC backlog problem that affected the Indians. It just shifts it toward other nationals and reduces diversity.”

The lead sponsors of this bill in the Senate were Senators Mike Lee and Kamala Harris. However, passage of the bill by the Senate is not the end.

According to the Wall Street Journal, the bill was approved under a procedure known as unanimous consent, which allows legislation with no opposition to pass without moving through the normal process of roll-call votes and hearings.

The Senate version is significantly different from the House version (much earlier, the House had passed a bill to lift country caps on green cards). Now the differences need to be reconciled, the reconciled version will then pass both houses again and only then can a final bill be passed. Considerable differences exist between the Senate and House bills, and the short window for consolidating them in the current session of Congress clouds the prospect of a law taking effect soon. Then comes the issue of a signature by outgoing US President, Donald Trump — which may be the other sticking point here.

Khatri says, “I hate to be pessimistic about S.386. I am not confident that the bill will become law. Like many bills passed at the end of a Congressional Session, especially by Unanimous Consent of the Senate or House, the Senators and Representatives know that there is no chance for eventual approval of a consolidated bill for Presidential signature,” but adds, “however, it gives lobbyists for supporters and opponents an opportunity to claim victory. The only loser in this is the talented skilled worker from India and most importantly, the United States of America since the failure to pass legislation to prevent the continued employment discrimination based on national origin of a particular group of highly talented, skilled and high income immigrants that pay substantial taxes hurts this nation.”

To this Mahajan adds, “There hasn’t been immigration reform in the past 30 years. This is as close as it gets. It’s not perfect, but it’s a start,” she says adding, “which is why we are waiting with bated breath!”

“As with all laws, it isn’t possible to predict what will happen next. Hopefully, during the new administration (Biden), it might be easier to get it passed,” says Atlanta-based immigration attorney Rajeev Chaudhary.

Still, the bill’s passage marks the furthest progress such legislation has achieved after years of advocacy by Indian immigrants caught in the backlog.

---

Anu Ghosh immigrated to the U.S. from India in 1999. Back in India she was a journalist for the Times of India in Pune for 8 years and a graduate from the Symbiosis Institute of Journalism and Communication. In the U.S., she obtained her Masters and PhD. in Communications from The Ohio State University. Go Buckeyes! She has been involved in education for the last 15 years, as a professor at Oglethorpe University and then Georgia State University. She currently teaches Special Education at Oak Grove Elementary. She is also a mom to two precocious girls ages 11 and 6.