Review of the Proposed Employment-Based Immigration Bills in U.S. Congress: Potential Backlog Reduction for EB-2, EB-3, and EB-5 Visa Categories

These bills have the potential to reduce or eliminate the backlogs for the EB-2 and EB-3 categories that are critical to your company’s success. Did you know that an H-1B visa can be extended beyond six years if the individual also has an approved I-140 as part of the green card application process? Contact us today to discuss starting the permanent residence process for the resources who are critical to your bottom line.

Review of the Proposed Employment-Based Immigration Bills in U.S. Congress: Potential Backlog Reduction for EB-2, EB-3, and EB-5 Visa Categories

A series of immigration bills are making their way through Congress with some bipartisan support. The U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) on July 10, 2019 with 224 Democrats and 140 Republicans supporting the bill. However, a companion bill in the Senate called the Fairness for High-Skilled Immigrants Act of 2019 (S.386) is facing some opposition from several senators who have placed holds on the bill, which may prevent the bill from getting to the floor for a vote. Senator Rand Paul objected to moving the bill forward in June and a few weeks later introduced an immigration bill titled the Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act (S. 2091).

Senator Paul’s bill would eliminate the per-country limits for all employment-based categories and would increase the number of green cards available each year. He also proposes to exempt certain health care workers and some spouses and children from counting against the limits on employment-based visas. The bill would also allow spouses and children of E, H, and L visa holders to pursue their own employment. The bill currently has no co-sponsors and some believe it could be a distraction from the Fairness for High Skilled Immigrants Act of 2019, preventing the Senate from moving forward.

The House version of the Fairness for High-Skilled Immigrants Act would eliminate the per-country limits on all employment-based immigration categories and would increase per-country limits for family-based categories from 7 percent to 15 percent. The bill also allows for a three-year transition period and includes a “do no harm” provision which would attempt to ensure that beneficiaries of employment-based petitions approved prior to the bill’s enactment receive a visa no later than they otherwise would have if the bill had not been enacted.

The Senate companion to the bill has similar provisions, but instead of providing the transition period to the EB-2, EB-3, and EB-5 categories like the House bill does, the transition does not apply to EB-5 visa applicants. However, the “do no harm” provision is included in the Senate version, which would provide some protection to EB-5 visa applicants who had an approved petition prior to the bill’s enactment.

The Senate version also makes some changes to the H-1B visa program, due to an amendment by Senator Chuck Grassley. His amendment adds the requirement for internet postings to a DOL website, requires an administrative fee for LCAs, and make several updates to allow the USCIS and DOL to ensure compliance.

If the Fairness for High-Skilled Immigrants Act passed in the Senate, a conference committee would need to be assembled to reconcile the two versions of the bill. If the bill passed the House and Senate, it may be challenged by President Trump, who could choose not to sign the bill into law.

In summary, here are some of the anticipated impacts of the bill on employment-based visa applicants:

  • The elimination of the per-country limits would move green card wait times for those who have waited the longest in queue, especially those from India and China in the EB-2, EB-3, and EB-5 visa backlogs.
  • Within 5-7 years of the transition period, the employment-based green card backlog will likely end.
  • This comes at the expense of individuals in other countries who previously did not have long wait times – it is estimated that all categories will have some wait times.
  • Executive Director of the National Foundation for American Policy (NFAP) Stuart Anderson predicts that up to 40,000 green cards could go to Indians in the EB-2 and EB-3 visa categories in FY 2023 and 2024.
  • Anderson also predicts that during 2023, all Indians in the EB-3 backlog may have received green cards, but that would leave around 290,000 in the EB-2 backlog. Some may choose to refile under the EB-3 category and by FY 2027 or 2028, the entire backlog for Indian nationals who were waiting prior to the bill’s enactment would be eliminated.

The bill could also have the following impacts on family-based visa applicants:

  • The increase of the per-country limits from 7% to 15% (15,820 to 33,900 from a single country annually) would result in more visas being allocated to individuals from backlogged countries.
  • The new limits could help individuals born in Mexico and Philippines, and to a lesser degree, India, who have been waiting the longest in family-sponsored visa categories.
  • Individuals in other countries will likely have increased wait times as the backlogs are cleared.