What’s Happening
On the evening of December 2nd, 2020, The United States Senate passed an amended version of S.386/H.R.1044, otherwise known as the “Fairness for High-Skilled Immigrants Act”. This development is the latest step in a decades-long debate over the removal of numerical limits currently in place that cap the number of employment based immigrant visas (“green cards”) nationals of any specific country can be granted in a given fiscal year. These caps have long been problematic as they have resulted in significant wait times for green card applicants born in India and China due to high volume of applications filed by nationals of those countries each year and the finite availability of employment based green cards per year. Some projections put the current wait times for Indian and Chinese born nationals to obtain green cards as being longer than 50 years in some instances over 100 years (whereas the wait for someone born in nearby Bangladesh or Japan could be as little as 1 year for the same benefit).
The House version of the bill, initially passed on July 10, 2019, has been significantly amended by the Senate and will have to be reviewed and approved again by the House in its amended form in order to be presented to the executive branch for Presidential approval.
What This Means
Under current U.S. law, an annual limit on the issuance of employment based green cards is set at 140,000. In addition, under current law no more than 7% of green cards annually can be issued to individuals from the same country of origin, known as the “per country cap”. It is an individual’s place of birth, rather than their citizenship, that dictates the country to which they will be charged for green card purposes. At present, for example, an estimated 1.2 million Indian-born nationals are projected to be present in the United States awaiting the opportunity to apply for a green card based but facing long backlogs since only roughly 7% of the 140,000 employment-based green cards each year (9,800) can be allocated to Indian-born nationals. While this 9,800 figure can increase slightly in certain years given that unused green cards in other categories (such as family-based green cards) can be added to the employment-based numbers, this slight increase in potentially available employment-based green cards in a given fiscal year is nowhere near enough to have a meaningful impact on the current backlog.
Fierce debate has surrounded the proposed amendment, which has pitted Indian and Chinese nationals against others, collectively referred to as “Rest of World” (ROW) per the U.S. Department of States monthly visa bulletin. Proponents argue that per country caps are inherently discriminatory in nature, and leave Chinese and Indian green card applications pending for decades while applicants remain in the United States on temporary work visas, leaving their children whose presence is derived from their parent’s temporary visa vulnerable to “aging out” and being forced to leave the country. Opponents of the amendment argue that removal of per country caps without increasing the overall number of employment based green cards available will simply shift all applicants, regardless of country, into a single significant backlog. Others oppose the amendment on the basis that it threatens American jobs in certain industries which Indian and Chinese nationals in the United States are predominantly employed in, namely Science, Technology, Education and Math or “STEM” fields.
Alternative amendments have been proposed, such as the RELIEF Act, which removed per country limits but simultaneously doubled the number of overall employment-based green cards to 235,000, alleviating the effect of a single backlog. However, both the Trump Administration and the Republican-majority Senate have opposed such an increase.
In its current form, the proposed amended Senate version of the bill seeks to address both proponents’ and opponents’ concerns in part by reserving a percentage of annual employment-based green cards for “immigrants who are natives of a foreign state or dependent area that is not one of the two states with the largest numbers of natives waiting for immigrant status”. In effect, despite removal of per country caps, in the first fiscal year following the effective date of the amendment (at present, starting October 2022), 30% of employment-based green cards would be reserved annually for non-Indian and Chinese nationals. The following year, 25% would be reserved, and so on in annual reductions of 5% until the sixth anniversary. To address concerns over all nationals being forced into a single lengthy backlog, U.S. Senators propose permitting individuals who have waited two years since approval of their employer’s I-140 petition to file an I-485 adjustment of status and apply for a work permit, providing them flexibility in employment and permitting them to remain lawfully in the United States pending issuance of a green card if their underlying temporary work visa is revoked.
What You Need to Know
As mentioned above, the amendment has undergone significant changes from its previous form passed by the House last year, and has now reverted back to the House for consideration and a further vote for approval. We are fast approaching the end of the Congressional session for 2020 on December 18, and if the amendment is not both approved by the House in its current form and signed into law by President Trump, it would have to be re-introduced in the subsequent Congressional session next year, under a new Biden Administration and with a potential rebalancing of the U.S. Senate. While the Trump Administration has strongly opposed raising the overall number of employment based green cards, President-Elect Joe Biden has explicitly pledged to propose legislation that would increase the overall number.
D&S will continue to monitor this developing situation and provide updates as they become available.