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U.S. Bill to remove per-country limits to employment-based immigrant visas

Similar bills have been introduced in the past. If enacted into law this year, IT workers from which countries would benefit?

Crispin Aranda

U.S. Bill to remove per-country limits to employment-based immigrant visas

Bill to to remove per country limits to Employment-based immigrant visas

At first glance, this resurrected bill by California Democratic representative Zoe Lofgren would be good for Indian and Chinese skilled workers and professionals.  A similar bill was introduced by Lofgren in 2017u.

The California representative introduced the current bill - the Fairness for High-Skilled Immigrants Act (H.R. 1044) with Republican congressman Ken Buck of Colorado. with 112 bipartisan members.

HR 1044 seeks to “reform the legal immigration system by eliminating per-country percentage limits that cause backlogs in the employment-based green card system.”

As proposed, 15 percent of the immigrant visas allocated to the EB2, EB3 and EB5 in Fiscal year 2020  shall be allotted to immigrants from foreign states or dependent areas that are “not one of the two states with the largest aggregate number of foreign nationals who were beneficiaries” under the EB2, EB3 and EB5.

The current allocation stands at 40,000 each for EB2 and EB3, 10,000 for EB5. If the bill passes, an additional 9,500 could be added to the current allocations. Since India and China have the most number of EB2 and EB3 beneficiaries, applicants from these two countries would not benefit from the reallocation until 2023.

The bill proposes to reduce the increased allocation from 15% to  10% of the worldwide employment-based total worldwide. Instead of 9,500, the added visas would go down to 5,000 in these two years -2021 and 2022.

Two countries with most visa applicants in the Employment-based category

In February 2019, beneficiaries of the EB2 and EB3 from these two countries were the most backlogged. The EB2 and EB3 applicants from India would have to wait anywhere from 9-12 years from today. The beneficiaries of the same categories from China would be ahead of the line. The February cut-off dates for EB2 and EB3 for China (mainland-born) are October 1 and July 1 2015 respectively – which would be just 3-4 year wait till the immigrant visas are issued.

In contrast the cut off date for Other Worker category from China is August 1, 2007. This translates to an 11-12 year wait for Chinese immigrant visa applicants in this category.

A.  FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are authorized for issuance to all qualified applicants; and "U" means unauthorized, i.e., numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlierthan the final action date listed below.)

Employment-
based

All Chargeability 
Areas Except
Those Listed

CHINA-
mainland 
born

INDIA

MEXICO

PHILIPPINES

1st

01DEC17

08FEB17

08FEB17

01DEC17

01DEC17

2nd

C

01OCT15

06APR09

C

C

3rd

C

01JUL15

22APR09

C

01AUG17

Other Workers

C

01AUG07

22APR09

C

01AUG17

4th

C

C

C

01SEP17

C

Certain Religious Workers

U

U

U

U

U

5th Non-Regional Center
(C5 and T5)

C

01SEP14

C

C

C

5th Regional Center
(I5 and R5)

U

U

U

U

U

 

Mexico has the most number of immigrant visa applicants in the Family-sponsored categories, but the EB2 and EB3 from Mexico remains current, meaning there are less applicants than visas available for issuance in these two employment-based categories.

The cut-off dates, waiting period and immigrant visa available would also be affected by the “Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, (which) provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.” 

In addition, the Chinese Student Protection Act further complicates what should be easy computation. But that is another variable and another story.

Main beneficiaries

EB 2 or Employment-based preference category, cited as Paragraph (2) refers “Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability – advanced degrees to mean foreign nationals with U.S. Masters or PhDs. or their equivalent or who because of their exceptional ability in the sciences, arts, or business, will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, an d whose services in the sciences, arts, professions, or business are sought by an employer in the United States.”

Paragraph (3) specifies Skilled workers, professionals, and other workers.- 

The annual limits on Family and Employment-based visas worldwide are 226,000 and 140,000 respectively. The bill clarifies that the reallocated visas – as proposed – “shall be made available, in a number not to exceed 28.6 percent of (this) worldwide level, plus any visas not required for the other classes” particularly those for the EB1 and EB2 under the same INA Section 203(b).

EMPLOYMENT-BASED PREFERENCES

Under current law, if the 28.6% allocation of the worldwide employment-based preference level is not used, the visas allocated for the EB4 and EB5 shall be added to this 28.6% allocation.

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

(i) Skilled workers. - Qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing skilled labor (requiring at least 2 years training or experience), not of a temporary or seasonal nature, for which qualified workers are not available in the United States. 

(ii) Professionals. - Qualified immigrants who hold baccalaureate degrees and who are members of the professions. 

(iii) Other workers. - Other qualified immigrants who are capable, at the time of petitioning for classification under this paragraph, of performing unskilled labor, not of a temporary or seasonal nature, for which qualified workers are not available in the United States. 

(B) Limitation on other workers. - Not more than 10,000 of the visas made available under this paragraph in any fiscal year may be available for qualified immigrants described in subparagraph (A)(iii). 

Similar bills in previous Congress sessions

There had been similar bills introduced – but did not prosper much less enacted into law – in previous sessions of Congress in both the House and Senate chambers.

1.  S.281 — 115th Congress (2017-2018)Fairness for High-Skilled Immigrants Act of 2017Sponsor: Sen. Lee, Mike [R-UT] (Introduced 02/02/2017) Cosponsors: (20); Committees: Senate - JudiciaryLatest Action: Senate - 02/02/2017 Read twice and referred to the Committee on the Judiciary.

2.  H.R.392 — 115th Congress (2017-2018)Fairness for High-Skilled Immigrants Act of 2017 Sponsor: Rep. Chaffetz, Jason [R-UT-3] (Introduced on 01/10/2017) with 329 Co-sponsors. Cosponsors:  Committees: House – Judiciary. Latest Action: This bill has the status Introduced in the House after passing through subcommittees and committee. Also not enacted into law.

3. H.R.670 — 115th Congress (2017-2018)High-Skilled Integrity and Fairness Act of 2017Sponsor: Rep. Lofgren, Zoe [D-CA-19] (Introduced 01/24/2017) Cosponsors: (0)Committees: House - JudiciaryLatest Action: House - 02/08/2017 Referred to the Subcommittee on Immigration and Border Security. Suffered the same fate as the first two.

Please note as well that this current bill for highly-skiilled workers was just introduced.  As the legislative journey of the three similar bills show, this proposed law will still undergo several changes as it travels from subcommittee to committee levels, then to the main floor and finally during the conference committee recommendations prior to sending the final bill to the White House for the President’s signature.

Do not hold your breath, particularly because of what is still a divided Congress: Democratic controlled House of Representatives, the Republican dominated Senate and the veto pen from Republican nominee, now President Donald J. Trump.

Authors & Contributors

Crispin Aranda

Crispin Aranda

Crispin R. Aranda is an established International Visa Conselor and Immigrant Advocate. He is the president of IVC and is in several migration radio programs.

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