United States: Congress Considering Bills To Radically Change Distribution Of Employment-Based Green Cards

Earlier this month the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act (H.R. 1044), an act that would radically change the way employment-based immigrant visas are allocated by eliminating country-specific quotas. Under current law, no more than 7 percent of the total number of employment-based immigrant visas can be allocated to the natives of any single country, regardless of the size of that country’s population. If there are more green card applications than immigrant visa numbers in an employment-based category for a specific country, the State Department determines a “cutoff” date for applications. A foreign national whose priority date (i.e., waiting list date) is earlier than the cutoff date based on the particular employment-based preference category and the country of birth may apply for adjustment of status to permanent residence. A foreign national whose priority date is later than the cutoff must wait in a green card backlog until immigrant visa numbers reach the priority date. Because populous countries such as India and China have far more applicants than do smaller countries such as Switzerland, very long visa backlogs of many years have resulted for Indians and some other nationals.

If signed into law, H.R. 1044 would eliminate the per country limits. Instead, the bill would create a single queue for each preference category (EB-1, EB-2, etc.) without regard to country of birth. As a result of this change, a large number of foreign employees born in India or China who have been waiting for years in the employment-based green card backlog would see their wait times for a green card decrease. But those born in any country other than India or China would now face lengthy wait times — possibly as long as six or seven years — to obtain a green card. (While a three-year transition period included in the bill is designed to ease the impact on this group, the immediate increase in wait times would likely still be a significant one.) We note, however, that anyone with an I-140 immigrant petition approved before the bill is enacted would not be affected by these changes.  

A companion bill (S. 386) to H.R. 1044 has been introduced in the Senate. The Senate bill includes provisions added by Sen. Chuck Grassley, R-Iowa, that would increase H-1B employer obligations (such as imposing a fee to file a Labor Condition Application (LCA) and requiring employers filing new H-1B petitions to post information about the job on a new Department of Labor website and recruit for 30 days prior to submitting an LCA). It would also eliminate the B-1 in lieu of H-1B provision of the law that permits B-1 (business visitor) entry for employees of foreign companies who are sent to the U.S. to provide temporary services, and who will continue to receive their salaries from abroad.  

Though the Senate measure has bipartisan support, its prospects for passage, and the prospect of ultimately reconciling the House and Senate bills in a conference committee, remain uncertain. Also, Sen. Rand Paul, R-Ky., has introduced his own competing bill (known as the Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act, S. 2091), which we believe is far preferable to what passed in the House. The BELIEVE Act would almost double the number of employment-based visa numbers made available each year. It would also remove dependents (i.e., spouses and children) from being counted against the quota. In addition, it would permit the filing of adjustment of status (permanent residence) applications upon the approval of an immigrant preference petition without regard to the availability of visa numbers. And an applicant would receive ongoing employment and travel authorizations for however long it takes to approve the permanent residence case.

Passage of a law overhauling how employment-based green cards are allocated would clearly have a significant and immediate impact on all foreign national employees in, or about to begin, the green card process. We will therefore continue to closely monitor these bills, and will provide updates as they become available. We urge you to reach out to your senators and representatives to voice your opposition to S. 386 and H.R. 1044 and to lend your support to the BELIEVE Act (S. 2091). If you would like our assistance in drafting such letters, just let us know.  

New EB-5 Rules to Take Effect

As you may be aware, USCIS allots 10,000 EB-5 immigrant visas each fiscal year to individuals seeking permanent residence on the basis of their investment in a new commercial enterprise. EB-5 permanent resident status is available to anyone who has invested — or is actively in the process of investing — at least $1 million into a new commercial enterprise. If the investment in a new commercial enterprise is made in a Targeted Employment Area (TEA), the required investment is decreased to $500,000.

USCIS has issued a regulation that will make significant changes to the EB-5 Program. First, the minimum standard EB-5 investment will increase to $1.8 million, while the minimum TEA investment will jump to $900,000. These investment thresholds will automatically increase every five years, with the exact amount of increase keyed to the Consumer Price Index. Second, the new rules will grant USCIS the sole authority to designate high-unemployment TEAs, thereby eliminating state involvement in the process. It will also restrict a TEA to the immediate physical area around an EB-5 project — meaning USCIS will no longer permit the inclusion of more remote high-unemployment areas from which U.S. workers may commute to TEA jobs. Under this new approach, it will be far more difficult for urban development projects in major metropolitan areas (often some of the most sought-after investments for foreign investors) to qualify for the lower EB-5 investment threshold. 

Existing rules will continue to be in effect for EB-5 petitions filed before Nov. 21, 2019. After that date, projects that do not meet the new criteria will no longer be eligible. If you are considering filing an EB-5 petition, please contact us right away to discuss how to expedite filing before the November implementation of these stringent new regulations.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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