The EAGLE Act’s Deserved Demise

O n Wednesday evening, the Equal Access to Green cards for Legal Employment Act — or EAGLE Act — “was so overwhelmed by the opposition that it was pulled . . . from consideration by U.S. House Democratic leadership before a vote could be held,” Tech Target reported. An earlier, more modest version of the immigration bill, introduced in the House as the Fairness for High Skilled Immigrants Act in early 2019, enjoyed broad bipartisan support, garnering 311 co-sponsors by June of that year. But when an amended version of the legislation was introduced with far-more-expansive provisions — which could have orchestrated a significant increase in immigration from foreign nationals, particularly from China and India — many of the initiative’s previous backers balked.

The debates over the EAGLE Act are something of a proxy for larger questions surrounding America’s legal-immigration system, which has traditionally enjoyed broad bipartisan support within both major political parties. The initial, more rudimentary version of the legislation would have lifted per-country caps on employment-based H-1B visas for high-skilled foreign nationals to work in the United States, but would not have increased the net number of visas allocated. The more recent version, however, would have given residents waiting in the significant visa-applicant backlog the ability to apply immediately for green cards, allowing them permanent residency in the U.S. and putting them on a pathway to citizenship. In addition, a provision raising the cap on family-based visa applications from 7 percent to 15 percent would have allowed those green-card recipients to bring over even more family members through what is colloquially known as “chain migration” — a dispensation in the nation’s immigration system that allows the relatives of green-card holders to emigrate to the U.S. either through green cards or visas of their own.

Conservative critics worry that such measures could potentially open the floodgates of the country’s legal-immigration rates, which have been steadily climbing for the better part of a century. As it stands today, “when somebody wants to come here to work, they have to be sponsored by a company,” Joe Edlow, a visiting fellow at the Heritage Foundation’s Border Security and Immigration Center, told National Review. “It’s a two-step process: The company has to file a petition for them to get them an immigrant visa, and then once that visa is approved, in order to activate and use that visa, the intended immigrant has to apply to use that visa, if they’re in the country.” That system, however, contains significant built-in caps: “You can have as many approved visa petitions as possible, but the actual application to use that visa petition is subject to those numerical limitations that we have — that Congress has set — and there’s a certain number of people that can immigrate per year and can use those visas per year.” That’s the source of the backlog of “people that are essentially waiting to use these right now,” which encompasses a total of 377,953 applicants, according to State Department data.

What the EAGLE Act would do, however, “is say that if you have a visa petition, and you’re in this country — so you’re here on any status — and you’ve had that visa petition that’s been approved for two years, and you’re just kind of waiting until you’re able to apply because your number’s not available yet, you are now eligible,” Edlow said. “The numbers be damned, you are eligible to immediately apply for a green card.”

It’s not immediately apparent what precipitated the insertion of these much-more-expansive provisions. The new measures were originally inserted in the Senate version of the Fairness for High Skilled Immigrants Act, which was introduced by Mike Lee (R., Utah). While that bill failed to pass by the end of the session in which it was introduced, the additions remained in place when the legislation was reintroduced in the House this session. But some of the most aggressive lobbying for a ratcheting-up of H-1B visas and high-skilled immigration has come from Silicon Valley. Big Tech giants such as Amazon, Intel and Microsoft all backed the EAGLE Act.

Representative Zoe Lofgren (D., Calif.), the chief sponsor of the bill, counts much of Silicon Valley as her constituency in California’s 19th congressional district — and receives much of her financial support from technology firms and related entities. Labeled “the Democratic holdout on Big Tech legislation” by the left-wing American Prospect, Lofgren has a long record of friendliness to tech interests. In 2012, she was one of two Democrats to publicly oppose the Federal Trade Commission’s antitrust investigation into Google. Five years later, she was the only congressional Democrat to oppose a 2.42 billion euro fine levied against Google by the European Commission. In September, she was one of 16 Democrats to vote against a Big Tech antitrust package — despite polling showing constituents in her district support the measure by a 46-point margin. Lofgren’s top career donor is the corporate-immigration-law firm Fragomen, Del Rey, Bernsen & Loewy (tagline: “Live beyond borders”). Her second-, third-, and fourth-highest career donors are all tech firms. As of July 2021, Lofgren had “received $964,816 in her career, in employee and PAC contributions, from tech companies, including Cisco, Intuit, Google and its corporate parent Alphabet, Microsoft, Oracle, Adobe, the National Venture Capital Association, and leading VC company Kleiner Perkins,” the American Prospect reported last year.

But while tech interests and their allies in Congress might stand to gain from flooding the U.S. labor market with foreign workers, both immigration and national-security hawks worry that such measures could have significant negative consequences in other areas. Chain migration, which the EAGLE Act would exacerbate via its enhancement of access to green cards, “has made up 60 percent of total legal immigration” over the last 35 years, Jessica Vaughan wrote in NR in 2018. “Essentially, our system lets yesterday’s immigrants choose most of tomorrow’s immigrants.” That pushes the U.S. immigration system even further away from a merit-based regime, and closer toward a nepotistic or patronage-based one. A large share of the chain migration to the U.S. today, for example, is the result of the 1986 amnesty of some 3 million illegal immigrants, and “since chain immigrants tend to resemble their sponsors in terms of education and skills, many of today’s legal immigrants resemble the illegal aliens who received amnesty in 1986,” Vaughan wrote. “This helps explain why today’s immigrants tend to be less educated and tend to work in lower-paying jobs, and why about half of all immigrant-headed households are dependent on welfare programs.”

What’s more, in the specific context of the EAGLE Act, the removal of per-country caps would disproportionately engender more immigration from China and India, the two nations with the largest visa-applicant backlogs to the U.S. That raises serious national-security concerns. “The most substantial impact of removing country caps is providing a greater avenue for the Chinese Communist Party (CCP) to increase its theft of America’s intellectual property,” Heritage Action wrote in its statement of opposition to the EAGLE Act. “The CCP’s influence over its people means that an influx of Chinese workers into the U.S.—particularly in the high-tech space where many of these workers would end up—represents a threat to our national security. . . . Passing legislation that would massively increase the number of Chinese national visa holders is a bad idea at this time.” And those visas “would come at the expense of visa holders from other countries where there is no such concern of communist espionage.” (Representative Lofgren, notably, opposed a Republican effort to include a provision barring CCP-linked applicants from attaining a green card.)

Debates over America’s immigration system have not been resolved by the (at least temporary) demise of the EAGLE Act. But the growing skepticism of measures such as those in this week’s legislation, in spite of heavy lobbying from powerful business interests, shine a spotlight on the systemic problems with the way that the country processes legal as well as illegal immigration. Particularly on the right, where many lawmakers were traditionally friendlier to pro-immigration business groups, the crisis at the southern border has raised deeper questions about the U.S. immigration system. “With the way President Biden has mismanaged immigration, we now think that this deserves a much closer review,” Representative Jim Jordan (R., Ohio) said during a hearing on the bill in April.