A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Wednesday, September 25, 2019

S.386 - A Fight for Fairness

Recently, there has been a heated controversy surrounding the pending legislation of S.386 - Fairness for High-Skilled Immigrants Act of 2019. This bill was introduced by Senator Mike Lee, a Republican from Utah on February 7, 2019.   S.386's sister bill H.R. 1044, introduced by Democratic Representative Lofgren Zoe of California, was passed by the House of Representatives on July 10, 2019.  

Proposal to Change the Per-Country Cap
Section 202(a)(2) of the Immigration and Nationality Act imposes per-country limits on the number of family-based and employment-based immigrant visas granted every year to each country. Specifically, each country is allocated no more than 7% of the visa numbers available in each visa category.  The Fairness for High-Skilled Immigrants Act of 2019 aims at changing these limitations.  It increases the per-country cap on family-based immigrant visas from 7% to 15%.  The bill also seeks to completely eliminate the 7% cap for employment-based immigrant visas - this is the controversial part of the bill.

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Proponents of the Bill
The House version of the bill was passed rather uneventfully, with tremendous support by the hi-tech industry.  Proponents argue that the per-country cap is unfair to large countries such as India, with a population of 1.3 billion. Under the current visa system, countries of all sizes are allocated the same 7% of visa numbers, resulting in a much longer wait for countries such as India.  The shortage of American technical workers coupled with India's sustained emphasis in IT education and government incentives have created a large pool of Indian IT workers who are applying for U.S. immigrant visas.  Many of them are married with children and established residence in the U.S., but they must still face prolonged waiting times for their green cards and the associated uncertainties.  Proponents concede that this bill is not perfect and will prolong the waiting times of applicants of other nationalities. Nevertheless, they would rather get what they can now than wait for a better legislation which they argue would never come due to lack of political support.  They also emphasize that the "do no harm" and transitional provisions in the bill would protect the visa applicants who are already in the pipeline.

Opponents of the Bill
Despite the title of the bill, opponents argue that the bill is unfair to applicants from other countries. They recall the per-country cap was actually instituted to replace the previous quota system that discriminated against non-European countries.  They admit that the ultra-long waiting times for Indian nationals are unbearable and something should be done about it.  Rather than allocating most of the visa numbers to one country, they propose other measures including an overall increase of the current 140,000 worldwide employment-based immigrant visa quota, not counting dependent visa applicants towards the quota, etc.  They also point out that the current visa system actually efficiently distributes unused visa numbers despite the 7-percent country cap. For example, during the period of 2007-17, 280,523 visa numbers were issued to Indian applicants, representing about 20% of the 1,400,000 10-year quota.  Most importantly, they believe that the bill will virtually halt the immigration of skilled workers from other nations and workers in other fields such as health care and scientific research in the coming decade.

Status of the Bill 
The House version of the bill was passed in July.  S.386 is pending at the Senate. Last week it was put on a unanimous consent process, i.e., without an actual vote or a hearing. Senator Rand Paul reportedly blocked unanimous consent initially and then agreed to it after an agreement to admit 5,000 foreign nurses on temporary work visas for the next 10 years was reached. However, the bill failed to pass after unanimous consent was blocked by Senator David Perdue of Georgia on September 19. 

On September 25, Senators Mike Lee and David Perdue reportedly reached a agreement to provide 7,200 immigrant visas annually for foreign nurses and their dependents for 8 years in the EB-3 visa category.  After this agreement, Senator Lee's attempt to secure an unanimous consent vote on the bill failed again on September 26. 

S. 386 is still pending in the Senate as of this writing. The bill has attracted a great deal of attention in the media and social media since then, drawing heavy lobbying from both sides of the issue. One should not assume that it is a done deal.  Earlier this week, House Speaker Nancy Pelosi announced a formal impeachment inquiry of President Trump. Republican leaders have already expressed strong opposition to impeachment.  The White House will certainly take actions to defend the President. Fights of such a scale between the two parties may slow down or complicate any legislative process.  

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