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Fair or Unfair? The Fairness for High-Skilled Immigrants Act Fair or Unfair? The Fairness for High-Skilled Immigrants Act

Fair or Unfair? The Fairness for High-Skilled Immigrants Act

The U.S. welcomes 140,000 new employment-sponsored immigrants and their dependent family members as legal permanent residents (or “green card” holders) each year. Congress established the current limitations in 1965, and the Immigration Act of 1990 was the last to significantly revise statutory provisions on employment-based immigration. In addition to an overall numerical limitation, there also are per country limitations determined by a foreign national’s country of birth. These further limit immigration from each country to 7% of the global total. Based on the concentration of foreign nationals immigrating from certain countries, several countries routinely reach the 7% limitation resulting in significant backlogs for those foreign nationals (especially India and mainland China). The 140,000 allotment of employment-sponsored immigrant visas are split into five (5) categories: about 40,000 each per year in the most common EB-1 (priority workers), EB-2 (advanced degrees/ exceptional ability), and EB-3 (professionals/skilled workers) categories. This system has resulted in severe backlogs in the EB-2 and EB-3 categories for individuals born in India and mainland China but allowed individuals from other countries to progress toward green card without substantial delay. Currently, EB-2 India has a ten-year backlog and EB-3 India has a 13-year backlog. Recently, even the EB-1 category has been experiencing a backlog, and the current visa bulletin has a wait time of three years for nearly every country, except India with a four-year backlog.

In February, the Fairness for High-Skilled Immigrants Act of 2019 was introduced in the House. The House passed the bill in July, and the Senate will be considering it soon. If passed, the bill will be enacted in September 2020. This bill would eliminate the annual per country limitation of 7% for employment-based immigrants but would maintain the overall 140,000 numerical limitation. Proponents of the Act argue the current green card backlog depresses American wages, hurts American workers, and hinders further economic growth by dissuading talented individuals from coming to the United States as it places country of birth above talent and skill level. Proponents also believe the bill would allow greater career flexibility to qualified immigrants who are currently limited by green card sponsorship from accepting changes or advancements. Opponents of the bill caution that eliminating per country limitations will create a major backlog of at least seven (7) years for all foreign nationals regardless of country of birth. Opponents also suggest the bill will automatically prioritize the 1,000,000 Indian and Chinese born foreign nationals who already have a place in line for green cards thereby eliminating the diversity intended by the current country of birth limits. It is worth noting that the American Immigration Lawyers Association has remained silent on the bill due to competing membership interests.

Other related proposals are being considered such as the Believe Act, which would also eliminate per country limitations for employment-based immigration but would increase the overall number of annually allotted visas from 140,000 to 270,000. In addition, the Believe Act would not count dependent family members in the calculation nor would it count persons in shortage occupations such as nurses and physical therapists. Despite ongoing bipartisan support for immigration reform, the ability to pass any immigration legislation remains elusive.

If you have questions regarding these proposals or any other immigration matter, please contact Jenifer M. Brown or Christl Glier.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.



 
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