Bloomberg Law
Sept. 19, 2019, 7:30 PMUpdated: Sept. 19, 2019, 7:57 PM

End of Per-Country Visa Caps Fails in Senate for Second Time (1)

Laura D. Francis
Laura D. Francis

A Senate bill that would eliminate per-country caps on employment-based green cards was blocked again Sept. 19, marking its second failure to move despite bipartisan support and overwhelming House passage.

Sen. David Perdue (R-Ga.) blocked Sen. Mike Lee’s (R-Utah) unanimous consent motion to skip the committee process and bring the Fairness for High-Skilled Immigrants Act (H.R. 1044) directly to the Senate floor. A single senator can block such a motion.

Despite agreeing with the bill’s premise, Perdue said there’s “language that needs to be clarified” and that he still has concerns about the impact on “specific industries,” both of which he hopes to iron out with Lee, the primary sponsor of the Senate companion bill, S. 386.

“The legislation in its current form will negatively impact rural health care in Georgia and across the country,” a spokeswoman for Perdue said Sept. 19. The senator “plans to work with his colleagues to ensure these concerns are addressed in the final product.”

H.R. 1044 is a “small, but critically important fix” to the immigration system, Lee said on the Senate floor. Workers stuck in the green card backlog are there not because they failed to comply with immigration law, but simply because of their national origin, he said.

“I have yet to meet anyone in this body or the House of Representatives who can defend this flawed policy on its merits, because it makes no sense,” he said.

Lee’s updated version of the bill, which passed in the House July 10, contains additional language that would make changes to the H-1B specialty occupation visa program and provide a visa carve-out for nurses, physical therapists, and other occupations that the Labor Department has determined have demonstrated a domestic labor shortage.

The new language means the House and Senate versions would have to be reconciled in conference, if the bill eventually clears the Senate.

Mostly Indians in Backlog

H.R. 1044 would provide a faster path to a green card for thousands of mostly Indian skilled workers who’ve been stuck in a visa backlog that’s projected to last decades. The backlog is a function of both overall limits on green cards available each year and limits on how many immigrants from a given country can access those visas.

EB-2 visas—for workers with master’s degrees—currently are available for Indian immigrants who applied before May 12, 2009, according to the State Department’s most recent Visa Bulletin. Indians seeking EB-3 visas for workers with bachelor’s degrees had to have applied before Jan. 1, 2009.

Immigrants from China and the Philippines also are facing backlogs, although not to the same extent. Immigrants from all other parts of the world currently have immediate access to these visas, subject to processing times.

The bill doesn’t increase green cards overall, and so immigrants from around the world would start to experience green card wait times of around seven or eight years because of demand exceeding supply. H.R. 1044 provides for a transition period aimed at preventing excessive wait times for immigrants who’ve already applied for green cards.

New Language

In July, Lee unsuccessfully made a unanimous consent motion to pass S. 386, but was blocked by Sen. Rand Paul (R-Ky.). Paul objected based on the original bill’s potential impact on the nursing industry, which relies heavily on Filipino immigrants.

Paul later proposed his own bill (S. 2091), which would increase the total number of employment-based green cards.

The new language in H.R. 1044 would reserve at least 5,000 visas each fiscal year from 2020 through 2028 for immigrant nurses and other DOL-designated occupations with labor shortages.

But that number isn’t enough, said Bruce Morrison, a lobbyist for the American Hospital Association and former congressman. “That is why this bill would choke off green cards for nurses that hospitals need to fully staff emergency rooms and recovery wards, particularly in rural areas and inner cities,” he said in a statement.

H-1B Enforcement

The new version of the bill also would give the DOL more enforcement authority under the H-1B program. Such changes were added to gain the buy-in of Sen. Charles Grassley (R-Iowa), who has been a key figure blocking the bill’s passage.

Despite those additions, groups favoring lower immigration levels continue to oppose H.R. 1044 because they view it as a reward to information technology companies that have had a hand in displacing U.S.-born tech workers.

The bill “offers a major concession to employers who have bypassed U.S. workers for decades, without reforming the system to reduce guestworker admissions or prevent employers from replacing U.S. workers,” the Center for Immigration Studies said in a statement.

Immigration attorneys have split on the measure, with some advocating for its passage and others concerned about its effect on immigrants from countries other than India and China. For this reason, the American Immigration Lawyers Association hasn’t taken a position on the bill.

(Updated to include comments from Perdue's spokeswoman.)

To contact the reporter on this story: Laura D. Francis in Washington at

To contact the editor responsible for this story: Martha Mueller Neff at