In Nov. 2018, the U.S. Citizenship and Immigration Services (USCIS) proposed changes to the H-1b program. The proposed changes were published in Jan. 2019 and finalized
Earlier this year on July 12, the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) bill passed in the House of Representatives with majority. The bill related to the S. 386 introduced in Senate and consigned to the Committee on the Judiciary. The H.R. 1044 bill is essentially the same as the S. 386 Bill (also called the ‘‘Fairness for High-Skilled Immigrants Act of 2019’’). The main difference is that the S. 386 was introduced in the Senate - thus the presence of the S that prefixes the bill, while the H.R. 1044 was introduced in the House of Representative - thus the H.R that prefixes the bill.
The S. 386 bill (the senate’s substitute to the H.R. 1044) was then brought onto the Senate floor for a unanimous consent vote by Senator Mike Lee (R-UT). On September 19, the bill did not pass in the Senate due to objection from Senator David Perdue (R-GA), who objected because of (1) the language used in the bill which he believes needs clarity, and (2) concerns over the bill’s effect on specific industries in his state. However, Senator Lee plans on working on the bill with Senator Perdue through the weekend and believes that whatever issues Senator Perdue has with the bill can be resolved.
The Fairness for High-Skilled Immigrants Act of 2019 bill, if enacted, would eliminate the per-country numerical limitation on employment-based immigration (employment-based green cards) established by the Immigration and Nationality Act and raise the per-country cap for family-based immigration (family-based green cards) among other purposes.
What is the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044)?
The H.R. 1044 was first introduced by House Representative Zoe Lofgren (D-CA-19) before the house of representatives on February 7, 2019. The Fairness for High-Skilled Immigrants Act of 2019 was also introduced in the Senate as the S. 386 Bill. As already mentioned, this piece of legislation sought to eliminate per country cap on employment-based preferences as well as increase per country numerical limitations placed on family-sponsored preferences.
Currently, the annual numerical limits on immigrants are determined under the Immigration and Nationality Act as outlined under 201(c) & (d). The Department of State is responsible for determining both the family-based and employment-based preference numerical limitations based on a per-country limit fixed at a 7% annual limit for both the employment-based and family-based preferences.
The Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) sought to remove the numerical limits placed on employment-based preferences, as well as increase the numerical limit on family-sponsored preference from the current 7% to 15%.
What Would the Bill Mean to Employment-Based Preferences?
Currently, the employment-based preferences section is separated into five preference categories all of which are dependent on the per country limit. Those are EB-1, EB-2, EB-3, EB-4, and EB-5.
If enacted, the act would eliminate per-country numerical limit and the 7% cap and ensure employment-based visas were granted based on merit and not country of origin. This would in effect eliminate an offset that decreased the number of visas available to persons from China (& India).
What Would the Bill Mean to Family-Based Preferences?
For family-based preferences, the H.R. 1044 proposes an increase in per-country numerical limitation from 7% to 15%.
Currently, the family-based preferences section is separated into four preference categories all of which are dependent on the per country limit. These include F1, F2 (which is divided in F2A & F2B), F3, and F4.
What Are the Transition Rules Proposed by The Bill?
The bill also proposed a transition plan for fiscal years 2020 through to 2022. The transition rules include setting aside a percent of EB-2, EB-3, and EB-5 visas for persons not from the two countries with the most number of recipients of such visas (China & India). In addition, not more than 85 percent of unreserved visas can be awarded to any single country.
Additionally, all persons with an approved I-140 waiting for an immigrant visa with have a wait time identical to or shorter than what they already have. This is to ensure that persons with a set priority date are not negatively affected by the Fairness for High-Skilled Immigrants Act of 2019 if enacted.
Opinions are divided when it comes to the bill, although it has passed the House of Representatives. Since there is no actual increase in the number of green cards given, some feel the redistribution of how immigrant visas are given will affect persons in specific occupations such as nurses and others in the health sector. For instance, currently, the majority of nurses on the EB-3 are from Philippines and have no wait time. The H.R. 1044 bill would likely lead to long wait times for them. Since generally, nurses are not eligible for H-1b visa program, they would have to be unemployed as they wait for an immigrant visa. A new provision related to Nurses Carve Out (setting aside 5,000 or more visas for shortage occupations which includes nurses and physical therapists) was added on September 18, 2019. On the other side, the bill may be the solution to clearing the long backlogs persons from China and India face when it comes to the processing of employment-based immigration.
The Law Offices of Prashanthi Reddy are ever ready to provide assistance to persons in need of legal assistance when it comes to the rather confusing U.S. immigration process.
Congress.gov (July 10, 2019). Summary: H.R.1044 — 116th Congress (2019-2020). Retrieved September 23, 2019, from https://www.congress.gov/bill/116th-congress/house-bill/1044
Congress.gov (July 11, 2019). Text: H.R.1044 — 116th Congress (2019-2020). Retrieved September 23, 2019, from https://www.congress.gov/bill/116th-congress/house-bill/1044/text
AILA (July 10, 2019). H.R. 1044: Fairness for High-Skilled Immigrants Act of 2019. Retrieved September 23, 2019, from https://www.aila.org/advo-media/whats-happening-in-congress/pending-legislation/house-bill-fairness-for-high-skilled-immigrants
AILA (September 19, 2019). Featured Issue: Legislation Impacting the Per-Country Numerical Limitation. Retrieved September 23, 2019, from https://www.aila.org/advo-media/issues/all/featured-issue-legislation-impacting-per-country
C-SPAN (September 19, 2019). S386: Sn. David Perdue Objection & Sn. Lee reponse. Retrieved September 23, 2019, from https://www.c-span.org/video/?c4817675/s386-sn-david-perdue-objection-sn-lee-reponse