Bill Eliminating Employment-Based Per Country Cap Up for Vote in Senate

As you may recall, the Fairness for High-Skilled Immigrants Act of 2019, H.R. 1044, passed the House on July 10, 2019.  According to the summary of this bill on Congress.gov, this bill increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and eliminates the 7% cap for employment-based immigrant visas. It also removes an offset that reduced the number of visas for individuals from China. Further, the bill creates transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country.

A companion bill, S.386, was introduced in the Senate February 7, 2019. An amendment to this bill was submitted July 9, 2019 by Senator Chuck Grassley of Iowa. The bill directly impacts the countries of both India and China. In particular, Indian nationals, waiting to obtain a green card, will benefit most from bill. Currently, the October 2019 Visa Bulletin shows the priority dates for the EB-2 category for India is July 1, 2009 based on the Dates for Filing chart [1]. Therefore, if S. 386 is passed through the Senate, the bill will significantly alleviate the current discriminatory, decades-long backlog for employment-based green card applications.

The bill was at one point was blocked by Senator Rand Paul for voting. He wanted to carve out an exception for certain health care workers, specifically professional nurses, because in general most nurses may not be eligible for the H-1B visa and cannot work while waiting for their green card. Had S.386 passed, nurses from the Philippines would have to wait many years before receiving a green card.

However, Immigration Voice, a national non-profit organization working to foster American innovation and alleviate the problems faced by high-skilled future Americans in the U.S., has reported that the bill is expected to be brought up in the Senate for voting on Thursday, September 19th. The organization further reported that Senator Rand Paul, through negotiation with Senator Mike Lee and Senator Kamala Harris, has agreed to remove his hold on the bill in a compromise to set aside 5,000 per year for Schedule A workers (which includes physical therapists and professional nurses) for the next 9 years. Further, the bill to be voted on tomorrow will also keep the H-1B internet posting requirement proposed by Senator Grassley in his amendment to S.386 with a few changes. Specifically, the H-1B internet posting requirements will not apply to an H-1B nonimmigrant who has been counted against the H-1B cap and is not eligible for a full 6-year period or an H-1B nonimmigrant authorized for portability under INA 214(n). The bill also retains the “do no harm” provision for all employment based petitions approved on the date of enactment and the three-year transition period for EB-2 and EB-3 immigrants, but does not include EB-5 immigrants in the transition period.

If the vote in the Senate is successful tomorrow, then the amended H.R.1044 would return to the House for consideration. 

Our office will continue to provide the latest updates as the bills make movement in the House and Senate.

[1] https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2020/visa-bulletin-for-october-2019.html

By: Rahul V. Reddy & Kristina M. Hernandez

  

Rahul is the founding partner of Reddy & Neumann P.C. His practice covers employment-based immigration, in which he represents corporate clients in far-ranging industries. 

Kristina is an associate attorney at Reddy & Neumann. She was admitted to the State Bar of Texas in 2011. Her practice includes representing companies and individuals with employment-based visa petitions and applications.