Despite what employers see as a fierce global battle for talent, enacting policies to attract highly educated foreign-born scientists and engineers to America has proven difficult. The recent blocking of an amendment on green cards for individuals with Ph.D.s in science and engineering illustrates the problem, along with a new lawsuit filed on behalf of potential employment-based immigrants waiting for adjustment of status in the United States.
STEM Ph.D. Amendment Shelved: On July 12, 2022, the House Rules Committee did not accept a highly anticipated amendment on green card exemptions for Ph.D.s to H.R. 7900—the National Defense Authorization Act (NDAA) for Fiscal Year 2023. The amendment was sponsored by Representatives Lofgren (D-CA), Curtis (R-UT), Langevin (D-RI), Meijer (R-MI), Panetta (D-CA), Salazar (R- FL), Malinowski (D-NJ), Krishnamoorthi (D-IL) and Foster (D-IL).
The amendment, according to a summary, “Exempts individuals from the numerical limits on immigration who have earned a doctoral degree from a qualified research institution in critical industries in a field involving science, technology, engineering, or mathematics (STEM).”
According to a Congressional source, the House Rules Committee did not rule the amendment in order because the Congressional Budget Office (CBO) said the provision would cost $1 billion over 10 years. To address the issue and offset the cost, a $7,500 fee was added for the individuals who received permanent residence under the provision. However, the House Ways and Means Committee said the fee could not be included because it amounted to a tax and, therefore, violated Clause 5(a) of Rule 21 of the rules of the House of Representatives.
Rule 21 states, in part, “[A]n amendment in the House or proposed by the Senate carrying a tax or tariff measure shall not be in order during the consideration of a bill or joint resolution reported by a committee not having that jurisdiction.”
The fee could have been removed, the source noted, but the House Rules Committee would not waive the PAYGO requirement, so either way, the amendment would not have been in order.
Background On PAYGO: According to the House Committee on the Budget, “Generally speaking, Pay-As-You-Go—frequently referred to as ‘PAYGO’—is a rule requiring that new legislation not increase the federal budget deficit or reduce the surplus. If legislation subject to PAYGO increases the deficit through an increase in federal spending or a reduction in revenues, that increase must be offset by increased revenue or reduced spending in other areas.”
The Congressional Budget Office has not made public why the amendment on exempting individuals with Ph.D.s in STEM fields in critical industries would increase costs by $1 billion over 10 years. Many immigration analysts are skeptical of the CBO estimate due to the significant benefits highly educated scientists and engineers bring to the U.S. economy. However, it is not possible to evaluate the Congressional Budget Office estimate without detailed information from CBO on its assumptions.
CBO also estimated a negative fiscal impact of a similar (more expansive) provision(s) in the COMPETES Act, which passed the House in February 2022. The Ph.D. provision was in the base bill, the source noted, and there was no offset requested. It remains unclear whether the COMPETES Act or any of its particular provisions will become law, given differences over the bill between Democrats and Republicans in Congress. (See here for a discussion of the COMPETES Act and its immigration-related provisions.)
Amendment On Children Of Green Card Applicants Ruled In Order: The House Rules Committee made an amendment in order—which allows it to be voted on the House floor—to help young people who may “age out” of a parent’s immigration application by reaching 21 before a parent gains permanent residence.
Aging out happens primarily due to delays caused by the per-country limit and an inadequate number of employment-based green cards. “If these policies are not changed, America is not only failing us, but it is failing itself by depriving it of the contributions of children it helped raise and educate,” said Dip Patel, founder of Improve The Dream, in an interview. “America has invested in our talents and success, and the country should reap the benefits.”
The amendment made in order “amends the Child Status Protection Act to protect dependent children of green card applicants and long-term dependent children of employment-based nonimmigrants from aging out of our legal immigration system.” The amendment was sponsored by Representatives Ross (D-NC), Miller-Meeks (R-IA), Lofgren (D-CA), Salazar (R-FL) and others.
Senator Charles Grassley (R-IA) told Latino Rebels correspondent Pablo Manríquez that “he opposes passing documented dreamer relief in NDAA.”
New Adjustment Of Status Lawsuit: In news connected to the Ph.D. STEM green card provision and the amendment to prevent children from “aging out,” on July 12, 2022, more than 60 plaintiffs with cases in 13 different jurisdictions filed a motion with the United States Judicial Panel on Multidistrict Litigation to consolidate and transfer their cases to San Francisco. The plaintiffs seek an order to ensure their employment-based adjustment of status cases are adjudicated in a timely manner.
“Lawful permanent residency (colloquially known as “green card” status) is a time-sensitive, life-changing immigration benefit,” notes the brief in support of plaintiffs’ motion filed with the Panel on Multidistrict Litigation. “However, the federal agency charged with adjudicating applications for such status—U.S. Citizenship and Immigration Services (USCIS)—claims it takes nearly 3 years to adjudicate a single green card application. Because the number of available green card visas changes each fiscal year, on October 1, 2022—the first day of FY 2023—unused, employment-based FY 2022 green card visas will be reallocated and individuals with immigrant visas available today will no longer have immigrant visas available to them for years. Simply said, if USCIS doesn’t use them, Plaintiffs will lose them.”
The plaintiffs write, “In the last quarter of FY 2022, USCIS has yet to take action on their adjustment of status applications, and the increasing likelihood of regression and additional years of wait for permanent residency haunts them. Over the past month, Plaintiffs all filed suits in their home jurisdictions with a single cause of action under the Administrative Procedure Act. Plaintiffs all allege under 5 U.S.C. § 706(1) that USCIS has unreasonably delayed final action on their adjustment of status petitions. All have current EB [Employment-based] immigrant visas; they all have pending adjustment of status petitions; they have all provided their fingerprints (some more than once); and they are all from backlogged countries—primarily India. They all make identical allegations about the USCIS’s adjudications ‘process.’ And they have all filed—or will fill imminently—motions to expedite discovery.
“They all seek information from USCIS about their processing logic; the number of adjudicators they have adjudicating these applications; how long it takes to adjudicate a single application; whether USCIS a policy of de-prioritizing adjudications for nationals of backlogged countries; how USCIS calculates its processing times; and whether it has slowed these adjudications down intentionally. Now, Plaintiffs seek to consolidate these cases to save resources and time to conduct discovery and file dispositive motions in a consolidated fashion.”
Brad Banias of Banias Law said the lawsuit employs a new strategy—multidistrict litigation (MDL). “The MDL is 7 judges that hear motions to transfer and coordinate or consolidate cases where plaintiffs who are litigating in different federal jurisdictions need to get the same discovery from the same defendant,” said Banias in an interview. “A lot of MDL litigation is mass torts. While nothing prohibits it from being used for administrative law cases, it is rarely used in those cases because they are based on a record, so no need to consolidate for discovery. Delay cases, however, require discovery. The agency defends almost all delay cases by defending the system, rather than the particular delay. Consolidating delay cases that challenge the same type of delay seems to be a good candidate for multidistrict litigation.”
“The potential impact this strategy could have is significant,” said Banias. “It would essentially allow plaintiffs to file in their own district on their own and have a court in another jurisdiction handle a majority of the case. It avoids the venue problems that group cases have been facing over the last year.”
Litigation and legislation are to be expected. The lack of successful action in Congress on employment-based immigration has resulted in long waits for green cards, children aging out of their parents’ immigration applications and scientists and engineers choosing countries other than the United States to create new jobs and innovations.