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A Better Way to End Employment-Based Country Quotas

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carl chustermanLimiting each country in the world to 7% of the 140,000 employment-based (EB) green cards granted each year is just plain stupid!



Because the future of our country depends on attracting the world’s most talented people to our shores.  Advances in disease prevention, information technology and in many other fields are accomplished by these people.   These people start-up companies which employ hundreds of thousands of U.S. workers.  A person’s intelligence and ability to innovate is not determined by their country of birth.  Sergei Brin of Google, Andy Grove of Intel, Jerry Yang of Yahoo and Vinod Khosla of Sun Microsystems are just a few of the thousands of immigrants who came to the U.S. and established companies that now employ hundreds of thousands of U.S. workers.

There are no country quotas for H-1B professionals.  Neither are there limits on the number of spouses and children of H-1B professionals.  When the H-1B caps were raised by Congress, it made sense to review and revise the number of EB-2 and EB-3 professionals who were allowed to immigrate to the U.S.   However, this issue was ignored by Congress and the result is our present massive EB backlogs, particularly for those born in India and China.

As 2012 approaches, there are over 100,000 persons waiting in line for green cards whose employers have demonstrated that they are filling jobs for which there are no qualified U.S. workers.  The waiting times stretch from 6 years for EB-3 engineers, therapists and teachers from over 190 countries worldwide to much longer waits for professionals born in China and India.  Since over 50% of those on the EB-3 waiting list are born in India, the 7% country-quota means that many of these people will still be waiting for their green cards in 15 to 20 years, or else they will simply give-up and go home.  If they do, it is our country which will be deprived of their talent.

What is the answer to this problem?

On November 29, the House of Representatives passed the “Fairness for High Skilled Immigrants Act” by a lopsided majority.  The bill would phase out the 7% country quotas over the next 3 years.  If the bill is enacted into law, persons born in China and India could use up to half of the EB-2 and EB-3 numbers during the next 3 years and an unlimited number after that.  As a result of this approach, the worldwide EB-2 category would instantly develop a backlog, and the nearly 6-year EB-3 backlog would quickly grow to 7 to 10 years or more.  And guess what? If the worldwide EB numbers retrogress, persons from India and China, professionals from the countries that the bill is trying to help, will also suffer.

Only by providing more EB visas can such a disaster be averted.

Congress is adverse to raising the number of EB visas.  However, Congress has, in the past, made available (“recaptured”) some of the many thousands of EB green cards that were lost in the past due to bureaucratic delays.  Congress may also wish to consider exempting immediate family members (spouses and children) of EB immigrants from the 140,000 cap on EB green cards, similar to the way that they are exempted from the cap on H-1B visas.

However, because of our current high-unemployment rate, there is a natural tendency of legislators to shy away from providing additional green cards.  Therefore, I propose that Congress should consider suspending the visa lottery for 2 years, and use the 100,000 visas which would have been given to lottery winners to those stuck in the EB backlogs.

Lottery winners are chosen at random and are not required to have job skills that are useful to our economy or even family ties in the U.S.  Clearly, encouraging professionals whose skills are in short supply and who are already working lawfully for employers in the U.S. is more important than allowing people to immigrate randomly.

The Senate will shortly take up the “Fairness for High Skilled Immigrants Act”.  Let’s hope that in addition to abolishing country quotas, they will amend the bill to eliminate the huge backlogs which would occur if they simply ratify the existing legislation.


P.S. - Senator Grassley’s Hold - On November 30, Senator Grassley placed a hold on H.R. 3012, the Fairness for High-Skilled Immigrants Act, the bill which would end country-quotas for employment-based employment and raise them for family-based immigration. He citied his “concerns about the impact of this bill on future immigration flows.” Also, Senator Grassley stated: “I am concerned that it does nothing to better protect Americans at home who seek high-skilled jobs during this time of record high unemployment.” On December 15, the Senator filed an amendment that would drastically change the bill in order for him to lift his hold. His amendment was rejected in the Senate.  Now, Senator Scott Brown (R-MASS) is sponsoring an amendment to H.R.3012 in the Senate which would provide 10,500 E-3 temporary professional visas per year exclusively for citizens of Ireland.  It is unlikely that the Senate will vote on H.R.3012 in the near future unless Senator Grassley can be persuaded to lift his hold on the bill.



Carl Shusterman is the managing attorney of Law Offices of Carl Shusterman based in Los Angeles, CA. He has specialized in immigration law for over 30 years and his six-attorney law firm represents clients in all 50 states. Mr. Shusterman is a 1973 graduate of the UCLA School of Law. He served as an attorney for the U.S. Immigration and Naturalization Service (INS) until 1982 when he entered private practice. He is authorized to practice before the Supreme Court of California, the Federal District Court in the Central District of California, the U.S. Court of Appeals in a number of different circuits and the Supreme Court of the United States.

Mr. Shusterman is a former chairman of the American Immigration Lawyers Association (AILA), Southern California Chapter and served as a member of AILA's National Board of Governors (1988-97). He has chaired numerous AILA Committees, spoken at dozens of AILA Conferences and has contributed a number of scholarly articles to AILA's publications. Mr. Shusterman is a Certified Specialist in Immigration and Nationality Law, State Bar of California. He has served as a member of the Immigration and Nationality Law Advisory Commission for the State Bar.

He has been named as one of Best Attorneys in America and as a SuperLawyer for many years. He is a frequent writer and lecturer on immigration law. Mr. Shusterman has testified as an expert witness before the Senate Subcommittee on Immigration in Washington, D.C. His website,, receives over 1,000,000 hits each week, and his free, e-mail newsletter has over 60,000 subscribers in more than 150 countries.

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