Update on Legislation to Change Per Country Green Card Quotas
March 9, 2020
Weaver Schlenger has previously reported on the Fairness for High-Skilled Immigrants Act, which was introduced in the Senate in February 2019 (S.386). No final action was taken on the legislation in 2019, and recently some significant changes have been proposed:
- Elimination of the “Do No Harm” Provision. The original S.386 bill provided that anyone with an approved employment-based immigrant visa petition (I-140) would not get a visa (green card) any later than they would have prior to the new law being enacted. This seemingly addressed fairness concerns for those who were already waiting in line in the EB-1, EB-2, EB-3, EB-4 and EB-5 categories, should the government eliminate the per-country limits on green cards.
- Extension of transition period for EB-2 and EB-3. The original bill called for the elimination of the per-country limits over 3 years. The amendment increases that transition period from 3 years to 9 years for the EB-2 and EB-3 categories only. It would increase the percentage of visas set aside each year in the EB-2 and EB-3 categories for countries other than India and China progressively over 9 years, ostensibly to lessen the impact of the elimination of the “Do No Harm” provision, but it’s difficult to know how that would in fact play out, and unfortunately this amendment does not protect the EB-1, EB-4 and EB-5 categories.
- Delay effective date of 50/50 Provision. The amendment would delay the effective date of the prohibition against employers with 50 employees who have more than 50 percent holding H-1B or L-1 status from hiring more H-1B employees.
- Weakens the Early Adjustment Filing Provision. While retaining a provision for filing early adjustment of status applications, the amendment would require beneficiaries with an approved I-140 to wait at least 2 years before they can file for early adjustment, and changes the effective date of the early filing provision from the date of enactment to one year from the date of enactment. Furthermore, the amendment would no longer permit the USCIS in their discretion to issue EADs to early filers where there are compelling circumstances (eg, a spouse who does not hold work-authorized status). Note: the S.386 bill prohibits anyone who files an early adjustment to obtain an EAD if they were not authorized for work at the time of filing. It previously allowed for an exception in the case of compelling circumstances.
- Retains previous amendments
- Visas set aside for shortage occupations (nurses, physical therapists, etc.)
- Expanded authority to Department of Labor (DOL) to investigate Labor Condition Applications (LCA) and H-1Bs
- New fee for LCAs
- Whistleblower protections for employees who report LCA violations
- Increased sharing of information between the USCIS and DOL regarding H-1B non-compliance
- Elimination of B-1 in lieu of H-1B
An alternate proposal, the Resolving Extended Limbo for Immigration Employees and Families (RELIEF) Act (S.2603) has not gained much traction, though it is supported by the American Immigration Lawyers Association for its exemption of dependent spouses and minor children from the immigrant visa quotas, increase in the number of green cards over the next five years, protecting minor children from aging out when they reach 21, and eliminating the per-country limits. In December 2019, Rep. Donna Shalala introduced the House companion version of the RELIEF Act.
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