Hold on Bill to End Per-Country Cap Lifted

In July 2012, Senator Chuck Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee, agreed to lift his hold on the Fairness for High-Skilled Immigrants Act (H.R. 3012) that was passed by the U.S. House of Representatives. Under current law, the total number of employment-based immigrant visas made available to natives of any foreign country in a given year cannot exceed 7% of the total number of such visas made available in that year. H.R. 3012 eliminates this per-country percentage cap by FY 2015 and also increases family-based visa limits from 7% per country to 15% per country. If enacted into law, the green card wait times for employment-based immigrants from high-volume user countries, such as China and India, would be reduced. On the other hand, slower processing for natives of all countries seems likely.

Senator Grassley reached an agreement with Democrats, led by Senator Chuck Schumer (D-NY), to lift the legislative hold on the bill in return for the bill’s addition of new H-1B enforcement provisions, including increased U.S. Department of Labor (DOL) oversight of employers that use the H-1B visa program and annual compliance audits.

The newly-amended H.R. 3012 has the potential to delay the processing of H-1B petitions by granting the DOL unfettered ability to audit and defer issuance of a Labor Condition Application (LCA) for an indeterminate amount of time, deny LCAs based on “indicators of fraud” that are undefined in the bill, and even authorize compliance surveys and audits of H-1B employers without any indication of fraud. The Grassley amendment also expands H-1B employer investigation triggers and the time period for investigations.

Senator Grassley’s release on the legislative hold is a significant step towards H.R. 3012 becoming law. However, the bill must pass through several stages before being enacted. For more information, click here.

Andrew W. Merrills is a shareholder in the Raleigh office of Ogletree Deakins, and he chairs the firm’s Immigration Practice Group. Sarah J. Hawk is a shareholder in the Atlanta office of Ogletree Deakins, and Nicole Brooks is an Immigration Client Resources Manager in the Raleigh office of Ogletree Deakins.



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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