At a glance

  • The Fairness for High-Skilled Immigrants Act (H.R. 1044) would equalize the waiting times for employment-based permanent residence, which would result in significant advancement in green card availability for employer-sponsored Indian and Chinese nationals, but would cause further backlogs for some other countries.
  • A companion bill has been introduced in the Senate. Its prospects for passage are uncertain.

The issue

The U.S. House of Representatives yesterday passed the Fairness for High-Skilled Immigrants Act (H.R. 1044), a bill that would change the way employment-based (EB) immigrant visas are allocated by eliminating country-specific quotas. The bill would also raise the per-country quota on family-based green cards.

If signed into law, H.R. 1044 would equalize the waiting periods for EB permanent residence and spur significant advancement in EB green card availability for India and China, but would increase waiting periods for some other countries.

A closer look

Under current law, no more than seven percent of the total number of EB immigrant visas can be allocated to the natives of any single country. If there are more green card applications than immigrant visa numbers in an EB category for a specific country, the State Department determines a cut-off date for applications. A foreign national whose priority date (her place in line) is earlier than the cut-off date for her EB preference category and country of birth is eligible to apply for adjustment of status or an immigrant visa. A foreign national whose priority date is later than the cut-off must wait in a green-card backlog until more immigrant visas become available for her country of birth and preference category.

The Fairness for High Skilled Immigrants Act seeks to change the way EB green cards are allocated by eliminating the seven percent limit per country. Instead of separate queues for each country in each EB green card category, the bill would create a single queue per category. If the bill were signed into law, a large number of foreign employees born in India or China would become eligible to file applications for permanent residence. At the same time, those born in other countries would face the possibility of longer backlogs, though a three-year phase-in period would minimize the negative impact on natives of these countries. The bill would raise the per-country quota for family-based immigrant visas to fifteen percent, from seven percent.

What's next for the bill

A companion bill, S. 386, has been introduced in the Senate with additional provisions that would increase the Department of Labor's oversight and enforcement authority over the H-1B category and increase H-1B employer obligations. Though the measure has bipartisan support, several senators have reportedly placed holds on the bill, making its prospects for passage uncertain.

Fragomen is closely following the Fairness for High-Skilled Immigrants Act and will provide updates as the bill advances.

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