As published in the Immigration Daily on January 2, 2020

There has been recent action with these two pieces of legislation aimed at reducing immigrant visa backlogs, which will hopefully continue with rapid pace when Congress again begins its work.

S 2603, the Resolving Extended Limbo for Immigrant Employees and Extended Families (RELIEF) Act, which is widely regarded as the best hope for equitable expansion and distribution of immigrant visa numbers, has gained a House companion bill, HR 5327, introduced by Representative Donna Shalala (D-FL) on December 5, 2019. The RELIEF Act would eliminate green card backlogs within five years, among other favorable provisions.

There is even more action in the flawed Fairness for High Skilled Immigrants Act of 2019, HR 1044/S386, as Sen. Dick Durbin (D-Ill.) reached a compromise on December 18 with Sen. Mike Lee (R-UT), S386’s sponsor, under which he would drop his opposition to S386 in return for the ability of employment based applicants to file for early adjustment of status under the EB-1, EB-2, or EB-3 categories if the visa petition has been approved or pending for more than 270 days, regardless of whether the priority date is available. (Such information is contained in a draft of the amended bill which is being circulated around Washington). The adjustment of status application could not be approved until an immigrant visa becomes available. The early filing comes with the ability to gain employment authorization for three years at a time, to change employers, and travel freely as well as protection for children who age-out after the adjustment of status application is filed. Sen. Durbin is a pivotal figure as it was his earlier opposition to S 386 that stopped the bill from being passed by unanimous consent in the Senate and he is the sponsor along with Sen. Patrick Leahy (D-Vermont) of S 2603.

HR 1044/S386 comes with a small price to the Indian community as the draft bill would prohibit employers with 50 or more employees from having over 50% on H-1B or L-1 visa statuses. All subsidiaries or group related companies that are part of one group would to be treated as a single employer as long as they are filing taxes under one entity as per §414 of the IRC. (Indian companies have dominated the H-1B market in past years garnering approximately 75% of all H-1B visas in 2016 and 2017).

Although the draft compromise makes the legislation better, it does not solve the huge problem of immigrant visa backlogs, which are more readily tackled by the RELIEF Act. It should be emphasized that the draft compromise like the original bill does not add any immigrant visa numbers. It merely reshuffles the numbers to natives of India to the detriment of the rest of the world, including China. (See our article, “Amended HR 1044 in S386 Happening Now Amid a Flood of Concerns”, The Immigration Daily, September 23, 2019). To those who would say that HR 1044/S386 benefits China-born also, one only has to point out that the China backlog under both EB-2 and EB-3 categories is less than 50,000 while the Indian backlog is over 600,000. India and China are not in the same boat, but the one piece of legislation that would make an equitable sharing of immigrant visas for everyone is the RELIEF Act.

Yet the political realities of the situation must be considered. Discussing his compromise with Sen. Lee on the Senate floor, Sen. Durbin pointed out that although he favored his own bill, it would not pass in the Senate at this time; that the President did not agree, and that most Republicans in the House and Senate also did not agree. It may well turn out that this compromise is the only game in town for a long time.

The question is then whether the immigrant community at large should continue to oppose HR 1044/S 386 in favor of the status quo or support it despite its inequitable sharing of immigrant visas and H-1B strictures – (in effect turning H-1B’s into a recruitment based program in which employers test the American job market using a searchable Internet website for posting positions administered by the Department of Labor, pay a fee for applying for a labor condition application (LCA), and prevailing wage challenges are placed directly under the jurisdiction of DHS).

It’s a closer call.