As published in the Immigration Daily on September 23, 2019

S.386 based on amended HR 1044, the “Fairness for High Skilled Immigrants Act of 2019”, appears on study to make visa number allocation changes in the EB-2 advanced degree and EB-3 skilled workers/ professionals/other worker categories benefiting only  the India-born. Senator Mike Lee (R-UT) moved for a unanimous vote in the Senate on September 19th (it previously passed the House) and although rebuffed by Senator David Perdue (R-GA), said that he intended to work with Sen. Purdue over the weekend to resolve differences.

The difficulty with the visa number change provisions is that there are only a finite number of employment-based visas, 140,000 allotted each year, to be fought over by every country in the world. (After FY 2022, 5000 of the visas will be taken for a period of 5 years for a new shortage occupation category). The legislation will remove the limit of the total that each country can obtain (currently 7%) and allow one country to take as many numbers as it can subject to a three-year transition period in which 15% would be reserved for the rest of the world except for India and China in FY 2020, and 10% in both 2021 and 2022 fiscal years. Of the 140,000, EB-2 is allowed 40,040 visas per year, and EB-3 the same amount (minus the 5000 for the shortage occupation category after FY 2022). As there is an 85% rule for the three-year transition period in which a single state cannot take more than that amount of visas, that means India-born could conceivably swallow up close to 85% of the EB-2 and EB-3 quotas for FY 2020-2022 less the numbers that must still be given to China-born and those of the rest of the world who have I-140 petitions approved as of the date of enactment since there is a “hold harmless” clause that those individuals will receive immigrant visas as if this legislation was never passed. The reason for the dominance of India is because entitlement to visa numbers depends upon priority dates with the oldest ones being served first. The pending India cases have priority dates which are 6 years earlier than the earliest priority date of the next heaviest user of employment-based immigrant visas, China. According to U.S.C.I.S. statistics in April 2018, India-born in the U. S. with approved I-140 petitions have a backlog of over 430,000 cases including dependents in the EB-2 line and about 115,000 including dependents in EB-3. This does not take into account approved petitions for India-born outside the U. S. According to Department of State statistics in November 2017, there were an additional 10,961 and 21,962 Indian cases in the EB-2 and EB-3 lines, and using the same U.S.C.I.S. multiplier for dependents, those figures would increase to 21,922 and 46,120. Simple math shows that only 80,080 total EB-2/EB-3 visas will be available every fiscal year with a three-year total of 242,400 through FY 2022. India alone had an estimated demand for 616,683 EB-2 and EB-3 numbers (using the above statistics counting those India-born in the U. S. and overseas with approved petitions) and there is no indication that the number of Indian employment cases has slackened recently. Following the transition period of 3 years, the reserve will come off of the 15% and 10%, and the entire 135,000 will then be available to the countries with the earliest priority dates, most likely still India as there will still be an estimated India demand of 350,000+ in the 2 categories, and the lower EB-3 category will be filled up by the many conversions of India EB-2 cases to EB-3. India’s backlog will also be longer due to the 5% drop-off in the worldwide reserve from 15% to 10% in FY 2021 and FY 2022 as a single state is restricted to 85% of the available visas. It should be noted that EB-2 and EB-3 numbers can be augmented by drop downs of unused visas from other categories, but visa usage is extremely high across the board and significant drop downs are unlikely.

The difficulty with the bill is that it does not expand the number of employment-based visas except for 5000 additional numbers for 3 years for the shortage occupations and only reallocates the existing ones. The “do no harm” clause will primarily only apply to a number of individuals from China with approved petitions whose cases would be within striking distance under China’s current backlog, but for those China-born without approved petitions on the date of enactment, they would be severely disadvantaged by the much earlier priority dates of the mountain of Indian cases. Their only sliver of hope is to take advantage of the 5% drop of reserved visas from 15% to 10% in FY 2021-2022 which Indians will not be able to touch because of the 85% single state limit rule. Additionally the logistics of administering a separate chart to figure out what visa movement would have been for the approved petition cases will likely be a nightmare.

For family-based cases, the legislation would increase the number of visas available for each country from a limit of 7% of the 226,000 worldwide total to 15%. The legislation would primarily benefit the countries of Mexico and the Philippines, and can be expected to retrogress family-based priority dates in all categories with the possible exception of the F-2A preference (LPR applying for spouse or unmarried child under the age of 21) which is current across all countries today.

Besides the visa number situation, a poison pill was slipped into the legislation by Senator Chuck Grassley (R-IA), an opponent of the H-1B program, in the form of provisions reformulating new H-1B’s as a test of the American job market with the requirement of a searchable Internet website for posting positions administered by the Department of Labor which must not only describe the job in full, but include the process for applying for the position. Currently the H-1B program is not a test of the American job market except for certain employers who have a large number of H-1B workers or past violators of the program. The employer would not be allowed to restrict the position to individuals who are or would be H-1B non-immigrants; give those individuals priority or preference in the hiring process; nor primarily recruit those types of individuals. The poison pill would also include the promulgation of a regulation to charge for the Labor Condition Application (LCA), and place challenges pertaining to the prevailing wage directly under the jurisdiction of the Department of Homeland Security (currently wage questions are the province of the Department of Labor).

Relating to H-1B’s, the new rule would also eliminate the use of B-1 business visas which companies use in lieu of H-1B’s where the alien will come temporarily to the U. S. for certain purposes for a short period(s) of time while being paid by an overseas company.

The one good part of the legislation is the reinstatement of Schedule A shortage occupations such as nurses and physical therapists for 8 years from FY 2020-2028 under which 5000 additional visas would be allocated for a three-year period from FY 2020-2022 before slicing into the 140,000 employment-based numbers. The inclusion of this provision prompted Senator Rand Paul (R-KY) to drop his opposition to the bill.

The legislation has an effective date of September 30, 2019, even if passed after that date. If the bill passes the Senate, it will go back to the House for reconciliation and final passage before moving to the White House.

On balance, we cannot support this bill, and urge a better one under which all employment dependents will no longer be counted or backlogs cleared for all countries inasmuch as the visa applicants are individuals who would benefit this nation, and have been or will be cleared by the Department of Labor and/or U.S.C.I.S. in labor certification/petition approvals in terms of skills to help the country – many in critical industries.