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Amended HR 1044 In S.386 Happening Now Amid A Flood Of Concerns
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</h3><h4><i>by <a href=”http://discuss.ilw.com/articles/articles/391715-article-amended-hr-1044-in-s-386-happening-now-amid-a-flood-of-concerns-by-alan-lee-esq#bio”>
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Alan Lee, Esq.
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<p>
S.386 based on amended HR 1044, the “Fairness for High Skilled Immigrants
Act of 2019”, appears on study to make visa number allocation changes in
the EB-2 advanced degree and EB-3 skilled workers/ professionals/other
worker categories benefiting only the India-born. Senator Mike Lee (R-UT)
moved for a unanimous vote in the Senate on September 19th (it previously
passed the House) and although rebuffed by Senator David Perdue (R-GA),
said that he intended to work with Sen. Purdue over the weekend to resolve
differences.
</p>
<p>
The difficulty with the visa number change provisions is that there are
only a finite number of employment-based visas, 140,000 allotted each year,
to be fought over by every country in the world. (After FY 2022, 5000 of
the visas will be taken for a period of 5 years for a new shortage
occupation category). The legislation will remove the limit of the total
that each country can obtain (currently 7%) and allow one country to take
as many numbers as it can subject to a three-year transition period in
which 15% would be reserved for the rest of the world except for India and
China in FY 2020, and 10% in both 2021 and 2022 fiscal years. Of the
140,000, EB-2 is allowed 40,040 visas per year, and EB-3 the same amount
(minus the 5000 for the shortage occupation category after FY 2022). As
there is an 85% rule for the three-year transition period in which a single
state cannot take more than that amount of visas, that means India-born
could conceivably swallow up close to 85% of the EB-2 and EB-3 quotas for
FY 2020-2022 less the numbers that must still be given to China-born and
those of the rest of the world who have I-140 petitions approved as of the
date of enactment since there is a “hold harmless” clause that those
individuals will receive immigrant visas as if this legislation was never
passed. The reason for the dominance of India is because entitlement to
visa numbers depends upon priority dates with the oldest ones being served
first. The pending India cases have priority dates which are 6 years
earlier than the earliest priority date of the next heaviest user of
employment-based immigrant visas, China. According to U.S.C.I.S. statistics
in April 2018, India-born in the U. S. with approved I-140 petitions have a
backlog of over 430,000 cases including dependents in the EB-2 line and
about 115,000 including dependents in EB-3. This does not take into account
approved petitions for India-born outside the U. S. According to Department
of State statistics in November 2017, there were an additional 10,961 and
21,962 Indian cases in the EB-2 and EB-3 lines, and using the same
U.S.C.I.S. multiplier for dependents, those figures would increase to
21,922 and 46,120. Simple math shows that only 80,080 total EB-2/EB-3 visas
will be available every fiscal year with a three-year total of 242,400
through FY 2022. India alone had an estimated demand for 616,683 EB-2 and
EB-3 numbers (using the above statistics counting those India-born in the
U. S. and overseas with approved petitions) and there is no indication that
the number of Indian employment cases has slackened recently. Following the
transition period of 3 years, the reserve will come off of the 15% and 10%,
and the entire 135,000 will then be available to the countries with the
earliest priority dates, most likely still India as there will still be an
estimated India demand of 350,000+ in the 2 categories, and the lower EB-3
category will be filled up by the many conversions of India EB-2 cases to
EB-3. India’s backlog will also be longer due to the 5% drop-off in the
worldwide reserve from 15% to 10% in FY 2021 and FY 2022 as a single state
is restricted to 85% of the available visas. It should be noted that EB-2
and EB-3 numbers can be augmented by drop downs of unused visas from other
categories, but visa usage is extremely high across the board and
significant drop downs are unlikely.
</p>
<p>
The difficulty with the bill is that it does not expand the number of
employment-based visas except for 5000 additional numbers for 3 years for
the shortage occupations and only reallocates the existing ones. The “do no
harm” clause will primarily only apply to a number of individuals from
China with approved petitions whose cases would be within striking distance
under China’s current backlog, but for those China-born without approved
petitions on the date of enactment, they would be severely disadvantaged by
the much earlier priority dates of the mountain of Indian cases. Their only
sliver of hope is to take advantage of the 5% drop of reserved visas from
15% to 10% in FY 2021-2022 which Indians will not be able to touch because
of the 85% single state limit rule. Additionally the logistics of
administering a separate chart to figure out what visa movement would have
been for the approved petition cases will likely be a nightmare.
</p>
<p>
For family-based cases, the legislation would increase the number of visas
available for each country from a limit of 7% of the 226,000 worldwide
total to 15%. The legislation would primarily benefit the countries of
Mexico and the Philippines, and can be expected to retrogress family-based
priority dates in all categories with the possible exception of the F-2A
preference (LPR applying for spouse or unmarried child under the age of 21)
which is current across all countries today.
</p>
<p>
Besides the visa number situation, a poison pill was slipped into the
legislation by Senator Chuck Grassley (R-IA), an opponent of the H-1B
program, in the form of provisions reformulating new H-1B’s as a test of
the American job market with the requirement of a searchable Internet
website for posting positions administered by the Department of Labor which
must not only describe the job in full, but include the process for
applying for the position. Currently the H-1B program is not a test of the
American job market except for certain employers who have a large number of
H-1B workers or past violators of the program. The employer would not be
allowed to restrict the position to individuals who are or would be H-1B
non-immigrants; give those individuals priority or preference in the hiring
process; nor primarily recruit those types of individuals. The poison pill
would also include the promulgation of a regulation to charge for the Labor
Condition Application (LCA), and place challenges pertaining to the
prevailing wage directly under the jurisdiction of the Department of
Homeland Security (currently wage questions are the province of the
Department of Labor).
</p>
<p>
Relating to H-1B’s, the new rule would also eliminate the use of B-1
business visas which companies use in lieu of H-1B’s where the alien will
come temporarily to the U. S. for certain purposes for a short period(s) of
time while being paid by an overseas company.
</p>
<p>
The one good part of the legislation is the reinstatement of Schedule A
shortage occupations such as nurses and physical therapists for 8 years
from FY 2020-2028 under which 5000 additional visas would be allocated for
a three-year period from FY 2020-2022 before slicing into the 140,000
employment-based numbers. The inclusion of this provision prompted Senator
Rand Paul (R-KY) to drop his opposition to the bill.
</p>
<p>
The legislation has an effective date of September 30, 2019, even if passed
after that date. If the bill passes the Senate, it will go back to the
House for reconciliation and final passage before moving to the White
House.
</p>
<p>
On balance, we cannot support this bill, and urge a better one under which
all employment dependents will no longer be counted or backlogs cleared for
all countries inasmuch as the visa applicants are individuals who would
benefit this nation, and have been or will be cleared by the Department of
Labor and/or U.S.C.I.S. in labor certification/petition approvals in terms
of skills to help the country – many in critical industries.
</p>
<p>
‡ This article © 2019 Alan Lee, Esq.
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About The Author<br/>
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<b>Alan Lee, Esq.</b> is an exclusive practitioner of immigration law based in New York City with an AV preeminent rating in the Martindale-Hubbell Law Directory for 20+ years, registered in the Bar Register of Preeminent Lawyers, on the New York Super Lawyers list (2011-12, 2013-14, 2014-2015, 2015-2019), and recognized as a New York Area Top Rated Lawyer. He has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Epoch Times, Pakistan Calling, Muhasba and OCS; testified as an expert on immigration in civil court proceedings; and is a regular contributor to Martindale-Hubbell’s Ask-a-Lawyer program. His article, “The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis” was Interpreter Releases’ cover display article at the American Immigration Lawyers Association annual conference in 2004; his 2004 case in the Second Circuit Court of Appeals, Firstland International v. INS, successfully challenged Legacy INS’ policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof, although its central holding that the government had to notify approved immigrant petition holders of the revocation prior to the their departure to the U. S. for the petition to be able to be revoked was short-lived as it was specifically targeted in the Intelligence Reform Act of 2004 (which in response changed the language of the revocation statute itself). Yet Firstland lives on as precedent that the government must comply with nondiscretionary duties established in law, and such failure is reviewable in federal courts. His 2015 case, Matter of Leacheng International, Inc., with the Administrative Appeals Office of USCIS (AAO) set nation-wide standards on the definition of “doing business” for multinational executives and managers to gain immigration benefits.
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