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The latest immigration and visa news for the USA, Canada, Australia, New Zealand, Ireland, and select European countries - straight from the leading immigrant advocates in the Philippines.

US Green cards without per country limit? What the US House of Representatives passed.

On July 10, 2019, the US House of Representatives passed H.R. 1044 a bill that seeks to double the number of immigrant visas available and remove the per country limits on employment-based visas? Good for Filipinos? Read on.

Crispin Aranda

US Green cards without per country limit?  What the US House of Representatives passed.

U.S. green cards without per country limits?

In the case of the bill removing per country limits of immigrant visas to the United States, passed by the House of Representatives on July 10, 2019, the favorite label of President Donald Trump is apropos: “fake news!”

Here’s the official announcement from the House of Representatives:

Introduced in House (02/07/2019)

Fairness for High-Skilled Immigrants Act of 2019

This bill increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and eliminates the 7% cap for employment-based immigrant visas. It also removes an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country.

Good news for Filipinos? Not really.

Many of those waiting for employment-based LPR status are already employed in the United States on temporary visas, a potentially exploitative situation that some argue incentivizes immigrant-sponsoring employers to continue to recruit foreign nationals primarily from these countries for temporary employment. Others counter that the statutory per-country ceiling restrains the dominance of a handful of employment-based immigrant-sending countries and preserves the diversity of immigrant flows.

The various news reports announcing this historic piece of legislation – such as “first time the bill has made it through house of Congress since 2011”– do not provide a complete, accurate picture backed by historical and factual evidence.

So, what’s behind the hoopla?

COMPARISON OF CURRENT AND PROSED LEVEL OF IMMIGRATION UNDER H.R. 1044

  • Current: INA 202(a)(2) Per country levels for family-sponsored and employment-based immigrants.

Subject to paragraphs (3), (4), and (5), the total number of immigrant visas made available to natives of any single foreign state or dependent area… may not exceed 7 percent (in the case of a single foreign state)or 2 percent (in the case of a dependent area) of the total number of such visas made available under such subsections in that fiscal year.

§  Proposed under H.R. 1044- INA 202(a)(2) Per country levels for family-sponsored immigrants

 

Subject to paragraphs (3) and (4) the total number of immigrant visas made available to natives of any single foreign state or dependent area…may not exceed 15 percent (in the case of a single foreign state)or 2 percent (in the case of a dependent area) of the total number of such visas made available under such section in that fiscal year.

The result is doubling the number of immigrant visas from the current average of 25,620 to 51,240 per year effective September 31, 2019 beginning of fiscal year 2020 if passed by U.S. Senate.

Current allocation, Employment-based visas: 140,000 under Immigration Act of 1990.

  • EB1:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences, or 40,000 per year. (The following visa allocation of the other EB categories represent a percentage of the worldwide EB preference level).
  • EB2:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% or 40,000 per year,
  • EB3:  Skilled Workers, Professionals, and Other Workers:  28.6% or 40,000 per year, with 10,000 exclusively for Other Workers
  • EB4:  Certain Special Immigrants:  7.1% or 5,000.
  • EB5:  Employment Creation:  7.1% of the worldwide level or 5,000 per year, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers.

Visa availability for Employment-based preference under H.R. 1044– No cap, per country limit/allocation removed.

A certain percentage of the total immigrant visas under the Family and employment preference categories “shall be allotted to immigrants who are natives of a foreign state or dependent area that is not one of the two states with the largest aggregate numbers of natives who are beneficiaries of approved petitions for immigrant status under such paragraphs.”

For the fiscal years 2020 the allotment is 15% pared down to 10% in the next two years.

Since the Immigration Act of 1990, when the immigrant visa numbers were increased 226,000 Family-sponsored and 140,000 Employment-based, the total number of lawful permanent residents admitted into the U.S. (from both immigrant visa applicants at consular posts/embassies overseas and those applying for adjustment of status in the U.S.) exceeded one million – except in 2012 when the total decreased to 990,553.

Assuming a 1-million average per year, approximately 200,000 visas shall be made available to countries other than China and India – the two countries with “the largest aggregate number of permanent residents admitted into the U.S.

The Philippines coming in third stands to benefit and share in the bonus visa allocations, in addition to the increased per-country yearly quota of 51,240.

The only cap to country limits would be 25% of worldwide quota under H.R. 1044.

Making visas unused in the EB1 and EB2 categories

H.R. 1044 allows the use of unused visas in the EB1 (Priority Workers) and EB2 (aliens with advanced degrees) for distribution of visas in the three years after passage of the bill. 

No effect on priority dates and place in line.  During the transition period, beneficiaries of approved petitions in the Family or EB categories will keep their place in line regardless of the changes by this bill.

Winners and losers

Immigration advocates and practitioners are one in identifying the two countries to benefit from H.R. 1044:  India and China.

While Mexico remained the undisputed king of family-based migration and overall winners in the green card race (157,227 in 2015, 172,726 in 2016 and 168,980 in 2017) the southern neighbor had very few applicants in the Employment- preference categories.

In 2017, India was on top of the list for visa beneficiaries (23,559) under the Employment-based categories with China coming in a close second at 19,221.  The total EB applicants for the Philippines was 9,341.  Mexico was a distant fourth at 5,493.

Those in the US get the first shot at green cards

Those already in the U.S. seeking to adjust their status to permanent residency stand to benefit ahead of immigrant visa applicants at consular posts. 

In the nonimmigrant visa categories, the Philippines has been a far third from China and India.

In 2017, the USCIS Yearly Statistics report 2,624,321 tourist visa holders from China (mostly in the B-1 and B-2 categories); 616,981 student visa holders and 100,005 temporary work visa holders (H-1B and H-2B categories.

India was second with 1,264,598 tourist visa holders; 181,612 in student status and 554,628 mostly in the H-1B category.

Visitors from the Philippines? Only 354,474. Student visa holders – 14,609 and 15,246 temporary workers.

In the 10-year period (2007 to 2017) India topped the list of applicants in the H-1B category, peaking to 300,902 in 2016 bringing up a 10 year total of 2,183,112 leaving applicants from other countries – including China and the Philippines in the dust: 296,313 and 85,918 respectively over the same period.

Since applicants already in the U.S. – such as H-1B holders – are already working and therefore keen to, and preferred by employers for immigrant visa petitions, applicants from India and China benefit from the USCIS preference to grant adjustment of status.

Traditionally and historically, the USCIS had been able to get more numbers for adjustment of status applicants. Case in point was in July 2007 when the USCIS issued permanent residency okay to applicants already in the U.S. without consulting the U.S. Department of State.

In the July 2007 Visa Bulletin (published June 12, 2007) the State Department showed the cut-off dates for Philippine applicants in all Employment-based categories as “Current” except for Other Workers.

The sudden availability of visa numbers in all Employment-categories for the Philippines resulted in anxiety and tribulation in June to disappointment and despair in the succeeding months.

Anxiety because visas became immediately available for that month. Despair because in the next days, the State Department issued a “correction.”

Unavailability and retrogression

Before the sudden notice of visas becoming available to Philippine applicants in the various Employment-based categories, the June 2007 Visa Bulletin showed the cut-off date for the EB3 as June 1, 2005. The cut-off date for Other Workers was October 1, 2001.

In August and September 2007, all the EB categories for the Philippines remained unavailable.  It was only in September of that year when a cut-off date was issued but the cut-off date retrogressed from the June announcement.

Remember that in June 2007 the cut-off date for EB3 was June 1, 2005. After the first announcement of visas being available, the State Department issued a revised announcement: no more visas were available.

The cut-off date in September 207 was more than a year move forward: from June 1, 2005 in June of 2007 to January 1, 2007 for the EB1, EB2, EB4 and EB5. 

The EB3 category (where nurses and other professionals were classified) was given a cut-off date of August 1, 2002, more than 3-year backward movement from the June 2007 dates. The EB3 cut-off was August 1, 2002

Other immigration bills to affect visa numbers

On August 2, 2017, President Donald Trump enthusiastically supported a bill sponsored by Republican Senators Tom Cotton of Arkansas) and Senator David Perdue from Georgia, who introduced the Reforming American Immigration for a Strong Economy (RAISE). The Act aimed at a skills-based migration while reducing the overall immigration to the U.S. by half.

The relevant provisions of RAISE Act are:

  • Establish a Skills-Based Points Systemto replace the current permanent employment-visa system with a skills-based points system, similar to the systems used by Canada and Australia. 
  • Prioritize Immediate Family Households. RAISE would retain immigration preferences for the spouses and minor children of U.S. citizens and legal permanent residents while eliminating preferences for certain categories of extended and adult family members. 

Consolidating visa allocation under H.R. 1044 and RAISE Act

H.R. 1044 intends to double the per-country allocation. It also allows countries (other than China and India) to share in the 200,000 plus visas that may be used from the unallocated EB1, EB2, EB4 and EB5 categories.

The RAISE Act on the other hand, intends to eliminate the F1, F2B, F3 and F4 categories. If H.R. 1044 is further revised to be in tune with RAISE, then there will be more visas available for Employment-based visa applicants.  The opposite effect will keep Families divided.

Even parents of US. Citizens (currently classified as Immediate Relatives of U.S. citizens and therefore are not subject to the per-country limits) shall be eliminated.

Unifying and transforming the Trump administration bills into law to replace the current visa allocation system is uncertain in a fractured Congress in this Divided States of America.

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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