Slow Progress For Bills In Congress To Address Green Card Backlog

Jackson Lewis P.C.

The Fairness for High Skilled Immigrants Act of 2019, introduced early in 2019 in both the House and the Senate (H.R. 1044 and S. 386), aims to eliminate the Green Card backlog for Indian and Chinese nationals. In July, the bill passed the House.

The Fairness bill would eliminate the per-country cap for employment-based immigrants and increase the per-country limitation for family-based immigrants. It eventually included a “do no harm” provision, which provides that anyone who had an approved employment-based immigrant petition (Form I-140) when the bill went into effect would not suffer any adverse effects.

Senator Charles Grassley (R-Ia.) introduced amendments to S. 386 that would have affected H-1B petitions. The amendments include an internet posting requirement, an LCA fee, and the elimination of the B-1 visa in lieu of H-1B visa status. Although the Fairness bill had bipartisan support, it was controversial. Opponents argued the bill pitted immigrants against each other – helping Indian nationals to the detriment of foreign nationals from other countries in what seemed to be a zero-sum game. Senator Rand Paul (R-Ky.) blocked the bill because it did not contain a “carve-out” for nurses. He introduced the BELIEVE Act, which would have made more visas available annually.

In mid-October, the Fairness bill again was blocked, by Senator Dick Durbin (D-Ill.) this time. Senators Durbin and Patrick Leahy (D-Vt.) introduced the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act, which is seen as a “win-win” solution, like Senator Paul’s proposal. The premise is simple: with more than four million immigrants on the Green Card waiting list, the number of visas available must increase. Under the RELIEF Act, the backlogs would be eliminated over a five-year period on a first-come, first-served basis; country caps would be eliminated; “aging out” children would be protected; and there would be a “do no harm” provision. Changes also include: (1) making immigrant visas available immediately for spouses and children of Green Card holders; and (2) providing that derivative beneficiaries of employment-based petitions be exempt from the Green Card limits. This would add tens of thousands of visas to the number currently available.

The RELIEF Act is endorsed by many immigration advocacy groups, as well as IEEE-USA, an association for engineering, computing, and technology professionals. According to Senator Leahy: “The mismatch between the supply and demand for green cards has left millions of immigrant families in legal limbo, stuck in a years-long backlog waiting for the chance to contribute to the nation.” To him and Senator Durbin the RELIEF Act is “commonsense legislation.” Others, however, believe that this approach will simply scuttle the Fairness Act – and there will be no progress at all.

A group of Democratic Senators are seeking a hearing on the various proposals.

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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