The Fairness For High-skilled Immigrants Act: the First Step to Comprehensive Immigration Reform

THE FAIRNESS FOR HIGH-SKILLED

IMMIGRANTS ACT: THE FIRST STEP TO

COMPREHENSIVE IMMIGRATION REFORM

DAVID BLUMENTHAL*

TABLE OF CONTENTS

INTRODUCTION ......................................... 256

I. OUR IMMIGRATION SYSTEM LACKS THE ABILITY TO PROCESS

IMMIGRANTS FROM LARGE COUNTRIES EFFECTIVELY . . . . . . . . . . . . 257

II. THE FAIRNESS FOR HIGH-SKILLED IMMIGRANTS ACT RAISES PER-

COUNTRY CAPS .................................... 260

III. THE ACT’S SUPPORT AMONG POLITICAL INSIDERS FROM BOTH PARTIES

AND THE GENERAL PUBLIC ............................. 268

IV. LEGAL CHALLENGES TO THE ACT FROM DIFFERENT BRANCHES OF

GOVERNMENT ..................................... 271

A. Challenges to the Federal Power to Regulate Immigration

by the Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . 271

B. Challenges Due to the Ineff‌iciencies and Ideologies of

USCIS Leadership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273

C. Challenges Due to the COVID Crisis................ 274

V. THE FAIRNESS FOR HIGH-SKILLED IMMIGRANTS ACT LEAVES MANY

IMMIGRATION ISSUES UNSOLVED . . . . . . . . . . . . . . . . . . . . . . . . . 275

A. A Program to Reward Highly Skilled Immigration, in

Conjunction with the Current American Immigration

System, Should Be Considered . . . . . . . . . . . . . . . . . . . . . 275

* David Blumenthal, J.D. Candidate 2021 Georgetown University Law Center, B.A. Political

Science, Yale College 2014. © 2021, David Blumenthal.

255

B. We Need More Visas in Addition to Resolving the Backlog . 276

VI. THE WAY FORWARD ................................. 276

INTRODUCTION

As President Donald Trump ran for the 2016 Republican nomination, he

embraced largely anti-immigrant rhetoric while also seeming to endorse legal

and skilled immigration.

1

Trump always qualif‌ied his statements favorably

for both legal and skilled immigration; he said at a 2015 Oklahoma rally, “I

want legal immigration. I want great people to come in.”

2

As president,

Trump endorsed skilled immigration with a new merit immigration proposal

unveiled in 2019, which adopts a “points system” that rewards well-educated

immigrants from “specialized vocations.”

3

Other Republicans have sup-

ported his call for more high-skilled immigration, including Senators Kevin

Cramer of North Dakota and Mike Lee of Utah.

4

The American people also agree with Trump’s statements. Around eighty

percent of Americans favor more high-skilled immigration, a f‌igure that far

outnumbers the twenty-four percent

5

of Americans who want more overall

immigration, per a 2019 poll.

6

In turn, Congress has responded with the

Fairness for High-Skilled Immigrants Act (“the Act”), a bill introduced every

session since Lee joined the Senate in 2011.

7

The Act would raise per-coun-

try caps on family immigration while getting rid of per-country caps entirely

for employment, clearing the visa backlog for large countries like India and

China.

8

The Act has gained political momentum during the 116

th

Congress,

which runs from January 3, 2019 to January 3, 2021. On July 10, 2019, the

1. See HBO, Legal Immigration: Last Week Tonight with John Oliver (HBO),YOUTUBE (Sept. 15,

2019), https://www.youtube.com/watch?v=tXqnRMU1fTs.

2. Id.

3. See Abigail Hauslohner, Trump Wants a Different Kind of Immigrant: Highly Skilled Workers Who

Speak English and Have Job Offers, WASH. POST (May 15, 2019, 7:54 PM), https://www.washingtonpost.com/

immigration/trump-wants-a-different-kind-of-immigrant-highly-skilled-workers-who-speak-english-and-

have-job-offers/2019/05/15/9c1d8eca-772b-11e9-bd25-c989555e7766_story.html. A separate faction of the

Republican Party, led by Senators David Perdue of Georgia and Tom Cotton of Arkansas, not only favored

a point system that favored high-skilled immigration but also favor cutting legal immigration overall. Id.

Trump called Perdue and Cotton “wonderful Senators” for their work on the bill. Text of President Donald

Trump’s Bill on Merit-based Immigration System, VOICE OF AMERICA (Aug. 2, 2017, 12:19 PM), https://

www.voanews.com/archive/text-president-donald-trumps-bill-merit-based-immigration-system.

4. See Hauslohner, supra note 3.

5. Phillip Connor & Jens Manuel Krogstad, Many Worldwide Oppose More Migration – Both into

and out of Their Countries, PEW RES. CTR. (Dec. 10, 2018), https://www.pewresearch.org/fact-tank/2018/

12/10/many-worldwide-oppose-more-migration-both-into-and-out-of-their-countries/.

6. Phillip Connor & Neil G. Ruiz, Majority of U.S. Public Supports High-Skilled Immigration, PEW

RES. CTR. (Jan. 22, 2019), https://www.pewresearch.org/global/2019/01/22/majority-of-u-s-public-

supports-high-skilled-immigration/.

7. See Fairness for High-Skilled Immigrants Act of 2011, S. 1857, 112th Cong. (2011); Fairness for

High-Skilled Immigrants Act of 2013, S. 293, 113th Cong. (2013); Fairness for High-Skilled Immigrants

Act of 2015, H.R. 213, 114th Cong. (2015); Fairness for High-Skilled Immigrants Act of 2017, S. 281,

115th Cong. (2017); Fairness for High-Skilled Immigrants Act of 2019, S. 386, 116th Cong. (2019).

8. S. 386.

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