Employer discrimination based on national origin has been illegal in the United States since the passage of the 1964 Civil Rights Act, yet American immigration law has continued to discriminate in that exact manner. If the government insists on restricting foreign workers’ access to U.S. markets, it should do so on the basis of merit, not nationality. Last week, Senators Chuck Grassley (R-IA) and Charles Schumer (D-NY) took an important step toward that goal, but it is a flawed one.
The Senators struck a deal to allow the Fairness for High-Skilled Immigrants Act (H.R. 3012) to move forward in the Senate. The bill would allocate employment-based green cards irrespective of national origin by eliminating country-specific limitations. Current law limits any particular country to 7 percent of the 140,000 employment-based green cards issued each year. This has resulted in extremely long waiting periods for workers from large countries like India and China that often extend for years, and even decades.
This discrimination is economically senseless and unjust, and Congress has finally realized it. Unfortunately, Sen. Grassley, who had placed a “hold” on the bill, decided to allow it to move forward not for noble reasons, but rather because Sen. Schumer, Chairman of the Immigration Subcommittee, signed on to an “agreement to include provisions that give greater authority to program overseers to investigate visa fraud and abuse.” This would expand the Department of Labor’s (DOL) powers to harass businesses that employ highly skilled immigrants.
Grassley’s amendments would give DOL “overseers” broad discretion to delay and audit applications for H-1B visas for temporary highly skilled workers. Current law allows the DOL to audit applications, which are submitted by employers, only after a visa has been issued and a complaint alleging visa fraud has been filed. The Grassley amendments’ overly broad and vague language would allow DOL officials to delay and block valid visa applications that would currently gain approval. All they would need is to allege “clear indicators of fraud or misrepresentation of material fact.”
Since the legislation provides no guidance on what these “indicators” should be, Labor officials would essentially have free rein to hold up any application at their discretion. Citizenship and Immigration Services (CIS) already considers being a small business—defined as having “less than 25 employees” or a “gross annual income less than $10 million”—as basis to suspect fraud, a conclusion based on the fact that large employers can afford better labor consultants to assure fewer mistakes on applications. Employers would also have no right to challenge such spurious audits in court.
Delays like these cost both money and time. This includes time needed to fill out an application, which by delaying applications past the deadline could turn this audit power into a de facto rejection power. That is especially likely as the 60-day limit for complaint-driven audits would not apply to these new investigations. On top of these, the Grassley amendments authorize annual compliance audits for any H-1B employer without any indication of fraud.
CIS administrative procedures already place considerable burdens on businesses, most notably through a huge increase in the number of “Requests for Evidence” on visa applications. These can delay applications for months. From 2008 to 2011, Requests for Evidence for high skilled visas—L-1B, H-1B, and O-1As—increased by 24 percent, 8 percent, and 14 percent, respectively. In the same period, H-1B rejections have increased from 11 percent in 2007 to between 17 and 29 percent under President Obama.
“We must bow to the genius of all, whatever group of mankind they may represent,” wrote Anthropologist Franz Boas a century ago, “as all have worked together in the development of the civilizations.” Boas was defending non-Western European immigrants against racist arguments for their exclusion. While he lost his fight in 1924, Congress now seems ready to end such discrimination, but it should focus on that goal, not on more regulation, so America can finally have an immigration law that acknowledges “the genius of all, whatever group of mankind they may represent.”