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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions