History Shows Congress Can’t End Structural Dysfunction in a System It Designed to Function That Way
by “Hart Celler” – 13 September 2026
An 18‑minute read.
Forward
I owe regular readers an apology. Somewhere over the last few years, I lost the plot—not of immigration law, but of how I write about it. I’ve been posting infrequently for the entirety of this blog’s existence, and of late, when I have written, it’s been in a style that doesn’t belong here. One that is too doctrinal. Too memo‑like. Too much ‘trying to get an op‑ed placed’ or ‘writing for CIS’—no offense to them intended—and not enough of what Amenables & Collaterals was supposed to be: me explaining U.S. immigration law without making readers feel like they accidentally stumbled into an unwanted immigration law seminar.
That’s on me.
The tagline at the top of this site says, “Explaining U.S. Immigration Law, One Story at a Time.” Lately, I’ve been explaining it one citation at a time, one regulation at a time, one prosecutorial paragraph at a time. Useful, maybe. Alienating—pun unintended—definitely. And not representative of the style I used when I started this project—the one that has mixed law with narrative, sarcasm with clarity, and structure with accessibility.
It’s not that I’ve in any way felt the need to prove I’m the smartest guy in the room so much having spent the last 18 months feeling like I have to reaffirm I simply deserve to be in the room in the first place.
This piece is a course correction. It actually started life as an op‑ed—one that no outlet wanted to publish, which is their loss. So I’m reserving my right to publish an updated version of it here, using the tone my posts should have been using consistently all along. It seems only fitting that if I’m going to reclaim my voice, I might as well reclaim my words too.
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Every few years, Congress comes close to yielding to pressure from Chambers of Commerce, large employers, and H‑1B beneficiaries demanding expanded access to foreign labor, easier, faster Green Cards, and more of them without country caps. These efforts always arrive dressed up as “reform,” but they’re really accommodations—attempts to feed demand rather than restore structure. And just as the H‑1B program has hollowed out the very Science, Technology, Engineering, and Mathematics exceptionalism it was supposed to augment, the program itself is now a far cry from its origins.
Contrary to the claim that our immigration system is “broken” and in need of comprehensive reform—a phrase that invariably serves as a euphemism for amnesty—the system is not broken. It is dysfunctional, but works exactly as Congress intends. The disorder is in the design. The incentives are the architecture. And in the case of H‑1B, legislators keep modifying a system they do not understand, rather than restore the one dismantled by predecessors in 1990.
For the first time in more than three decades, the legislative branch is confronting the monster it created—the drift produced by the Immigration Act of 1990. That Act lowered the standard of the legacy H‑1 visa, replacing a standards-based category requiring “distinguished merit and ability” with a degree-based specialty-occupation model, and created the conditions for the abuse that now defines the category. In both sessions of the 119th Congress, members introduced legislation aimed at addressing that shift: H.R. 6937, the End H‑1B Now Act, and H.R. 8443, the End H‑1B Visa Abuse Act. Each bill reflects the same bipartisan recognition that the system is saturated with abuse and fraud—but neither demonstrates a structural understanding of why the program functions this way, much as the 1965 Immigration and Nationality Act was passed with assurances that it would not “flood our cities” or “inundate America with immigrants from any one country or area, or the most populated and economically deprived nations.”
H.R. 6937—introduced by Rep. Marjorie Taylor Greene before her resignation—never attracted a single cosponsor and now sits without a sponsor in the chamber. It is an orphaned bill: a legislative expression of frustration with H‑1B, but not a vehicle able to move policy. Its presence in the docket matters only as a signal—the abolitionist instinct—not as a viable legislative way forward.
H.R. 8443, by contrast—already with ten cosponsors after less than a month—attempts to modify the 1990 architecture by freezing visa issuance for three years and then allowing a revised program to resume. But Section 2 contains a structural flaw so large that immigration attorneys could and would drive a freight train through it: the bill freezes visa issuance, not status approvals, leaving the pipeline fully open and allowing change of status, extensions, and portability. The population would eventually shrink, because the bill requires it, but in the meantime it would at best stay the same and at worst grow. Even after resumption, employers may self-certify they sought Americans but found none who were able, willing, qualified, and available, and have not—and will not—lay off workers in the prior or following 12 months.
Like the little Dutch boy, Congress is trying to plug systemic leaks one finger at a time while leaving the collapsing dyke intact.
The real problem is not H‑1B itself. It is the three-decade slide from the pre‑1990 architecture—where visa categories had clear purposes and boundaries—into a post‑1990 system where agencies, incentives, and loopholes redefined governance in practice. F‑1 meant studying and then returning home. J‑1 often forced return—and controlled transition into certain employment categories, including what became H‑1B—through a two‑year foreign residence requirement. And if you read the international student provision fully and in context, with its cross‑reference in the nonimmigrant admission section and finally to the foreign residence requirement, Congress seemingly intended that at least some international students would be subject to a similar obligation as exchange visitors.
Read correctly, the international student (F‑1) clause ultimately points to a two‑year foreign residence requirement for exchange visitors (J‑1) through a three‑step chain—1101(a)(15)(F)(i) to 1184(l) and finally 1182(e). These are not cross‑references Congress forgot to repeal—they signal intent for the Executive to enforce an obligation that was never finished.
Though post‑education employment authority dates to the late 1940s—when it was permitted if required or recommended by an institution to gain experience necessary to demonstrate technical proficiency—OPT in its modern form did not exist. Dual intent did not exist, and misrepresenting intent to a consular or immigration officer had consequences. The domestic pipeline did not exist. The green card backlog did not exist.
The last moment the system reflected congressional intent was 1989.
And this is where H.R. 8443 reveals its limits. Even after reading the bill closely, the core architectural problems remain untouched. Though Rep. Crane would undoubtedly say that was not his intention, the 25,000‑per‑annum cap is a throughput limit, not a population cap. It governs the number of visas and statuses that can be issued each year—reduced from the current 85,000 (65,000 + 20,000 for Master’s and Ph.D. grads), itself reduced from nearly 200,000 in the early 2000s—but it does not cap extensions, amendments, portability, or change‑of‑status inflow. It does not limit the number of people who can be H‑1B at any one time to 25,000. If the bill does not specify that, then it does not do what its sponsors promise. The text, not the intent, controls.
The bill shortens the maximum stay from six years to three, but includes no cooling‑off period. Thus, even if the bill did limit the number of workers at any one time, the same individuals could simply cycle back in after three years, passed around by employers to beat the cap even if they can no longer be sponsored for a green card.
The layoff provision is a self‑attestation. Employers merely attest that they have not laid off workers in the previous 12 months and will not lay off workers in the next 12. There is no verification, no audit, no documentation, and no enforcement mechanism. If Congress were serious about preventing displacement, it would require employers to lay off H‑1Bs first—or multiple H‑1Bs for each U.S. worker. Instead, the bill leaves the labor incentives intact.
Cap‑exempt abuse—essentially the “rent‑a‑human‑from‑a‑nonprofit” loophole—would continue, except perhaps for the U.S. Government. H‑1B‑dependent businesses remain untouched. The outsourcing model remains intact. The list of claimed “specialty occupations” will remain flexible, stretching credulity about jobs Americans supposedly cannot or will not do. Eliminating the lottery simply hands the system to the highest bidders—to the rich victors will go the worker spoils. Crane’s bill does not fix H‑1B; it monetizes it, awarding visas not to employers with genuine need but to those willing to pay the most. A system that claims to select for talent should not be reduced to an auction in lieu of a lottery.
If H‑1Bs are truly the “best and brightest,” employers should welcome verification and validation. Their resistance to proof reveals the truth: the claim is marketing, not merit. And the goal is profit.
Which is why the simplest, cleanest, most structurally coherent bill Congress could pass consists of a single paragraph:
“All provisions related to the H‑1B passed in the Immigration Act of 1990 or any successor legislation are hereby repealed and shall be replaced by the wording in the Immigration and Nationality Act in effect on November 28, 1990.”
A one‑page rollback would do more to restore integrity than any attempt to patch the current architecture—which is not to say retrogression alone would fix every H‑1B issue, but it would restore the system’s original integrity.
Returning to 1989 is not nostalgia. It is a simple structural correction—not a panacea, but the place Congress should begin.