EMPLOYMENT BASED VISA(Green Card) AND COUNTRY-OF-BIRTH CRITERIA. IS THERE IS A LEGAL RECOURSE TO STRIKE DOWN THIS CRITERIA?
Country-of-birth is a key criteria used for allocation 140,000 Employment based visas. Even though an applicant is already residing in United states, applicants country-of-birth is used to decide their wait time to get a green card and not the first-in-first-out criteria. This has resulted in wait-times of 20+years for applicants from few countries. This leads to hardships for applicants from certain countries
Country-of-birth clause is used by many employers to apply implicit coercion on employees to work for them in their terms(low wages, insufficient benefits etc..) for longer tenure. This tenure is supplied by long visa wait time.
Applicant ends up being tied to the same employer while he waits for visa even refusing promotions. This results in implicit involuntary servitude, Amendment XIII tries to prevent this. One could argue saying applicant can switch to another employer, but that would mean abandoning current approved immigration petition and restarting a fresh one which adds more uncertainties and risks.
Lot of potential immigrants who have been waiting for more than 10Years did not anticipate 10+years of wait when their immigration petition was approved. Wait time grew on them.
Even if an employee endures this by his own choice, it does not rule out the illegality of it. Employer may not appear wrong here as he is following law in its current form. What is wrong here is this clause in the law that empowers employer with coercive power. Law itself offers unfair advantage to the employer over employee, and allows employer to gain involuntary servitude from an employee.
Hence could this country-of-birth clause in the law be challenged under Amendment thirteenth (XIII)?
Amendment XIII :
Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United states, or any place subject to their jurisdiction