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July 10, 2019
Akshat Tewary, Esq.

The U.S. House of Representatives has passed H.R.1044 - The Fairness for High-Skilled Immigrants Act of 2019. To become law, a companion bill (S.386) must pass the U.S. Senate and then a reconciled version of the bill must be signed by President Trump. If enacted, this law would greatly expedite employment-based green card processing for Indian and Chinese nationals, reducing typical visa wait times from decades to a few years.

H.R. 1044 increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available in a 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.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2, EB-3 and EB-5 visas for individuals not from China or India. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country.

Outlook for Passage

The bill easily passed the House by a vote of 365-65. The companion bill in the U.S. Senate, S.386 currently has 34 (out of a possible 100) co-sponsoring Senators, which would seem to indicate a high chance of passage. However, the bill faces a number of challenges.

Lobbying from Anti-Immigrant Groups

While H.R. 1044 faced some level of lobbying from anti-immigrant, restrictionist groups like Numbers USA and the Federation for American Immigration Reforms, the bill passed with relatively little publicity from the mainstream media. Now that H.R. 1044 has passed, anti-immigrant groups will be stepping up their attacks against the bill (as this article from the Breitbart website makes clear).

Opposition from Senator Chuck Grassley

For well over a decade, Senator Chuck Grassley (R-IA) has been a notorious opponent of employment-based immigrant programs such as the H-1B and the L-1 visas. Sen. Grassley has similarly expressed his opposition to S. 386, although his position has evolved in the last few weeks given the widespread support for the bill. He previously circulated an amendment to S.386 that would have imposed new restrictions on the H-1B program. While most of the amendment's provisions are minor restatements of existing law, it does contain two significant changes: 1) LCAs would require a filing fee, and 2) LCAs could only be filed after being posted publicly for 30 days. While an LCA filing fee should not be too burdensome, the 30 day notice period could be devastating for IT consulting companies that file H-1B transfer petitions. As many of our clients well know, IT consulting projects often require almost immediate start dates. If S.386 is passed with the proposed Grassley amendment, the 30 day notice period would cause many IT consulting companies to lose valuable time-bound opportunities for new ("transfer") H-1B employees.

Opposition from Senator Rand Paul

Despite having exhorted his fellow Senators to vote for a similar bill last year, Senator Rand Paul has become an opponent of the bill this year. His chief concern is that the new systems created under S.386 would increase backlogs for nurses hailing from countries other than India or China. At present, the U.S. medical industry suffers from a dire shortage of nurses. And the "specialty occupation" H-1B program is simply unavailable for the vast majority of nurse professionals. Therefore, most foreign nurses who are able to work in the US can do so because of green card filings. The current system offers very favorable priority date cutoffs for many foreign nurses, and Senator Paul's concern is that the supply of foreign nurses may be restricted should S.386 pass. If passed, the final version of the bill may have a special carve-out to address this problem.

Opposition from President Trump

If S.386 is passed, it must overcome a potential veto from President Trump. Nobody knows how he will react to such a bill. The President is notoriously and famously anti-immigrant and jingoistic in his rhetoric. Rising opposition to S. 386 from the ultra-right wing of the Republican party (which has a strong influence on Trump) and senior DHS officials could lead Trump to veto the bill. Still, many pro-business Republicans and Trump allies have voted for or co-sponsored the bill, so Trump's disposition on the issue is far from clear. It should be noted that a bill can become law even despite a Presidential veto, if two-thirds of the House and Senate vote in its favor. H.R. 1044 was passed by well over two-thirds of the Democrat-controlled House. Whether the Republican-controlled Senate will follow suit remains to be seen.

Likely Impact in Case of Passage

Rapid Priority Date Progression for Indian and Chinese Nationals

If passed, the bill would virtually eliminate the current backlog for Indian and Chinese nationals in all categories in a few years. Indian and Chinese nationals would no longer face decades-long wait times for EB green cards, and could instead expect favorable resolutions in a few years. It should be noted that the passage of this bill may cause Indian and Chinese nationals to file more employment-based immigrant petitions, which in turn would lengthen visa wait times.

Backlogs for Non-Indian and Non-Chinese Nationals

While the bill would greatly benefit Indian and Chinese nationals, that benefit would come at the collective expense of nationals from other countries. A major flaw in the bill is that it does not increase the gross number of immigrant visas. Rather, it shifts the immigrant visa allocation system away from a per-country basis. Still, it must be recognized that any bill proposing increased immigrant visa numbers would have almost no chance of passage in today's political climate.

Another important feature of the bill is that the per-country cap on family-based immigrant visas would jump to 15% from 7%. This change would benefit nationals from Mexico and Philippines, who currently face significant backlogs that, in some cases, rival the backlogs faced by employment-based applicants from India and China.

Follow our website, twitter account and our email newsletters for the latest developments on this important issue.

Last updated: July 10, 2019.

Information on this website is provided for information purposes only, and its presentation herein neither creates an attorney-client privilege nor constitutes legal advice.

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