Welcome
Daily Labor Report®

Green Card Cap Legislation Remains Blocked Despite H-1B Deal

July 5, 2019, 10:35 AM

A deal between two Republican senators was expected to clear a roadblock that for years has stalled legislation to eliminate per-country caps on employment-based green cards. Then a previous sponsor of the measure torpedoed it.

Sen. Mike Lee (R-Utah) recently teamed up with Sen. Charles Grassley (R-Iowa) to include in the legislation provisions related to oversight and enforcement of the H-1B specialty occupation visa program. Grassley, who’s pursued H-1B changes for years, has been a key figure in blocking the bill’s passage.

The provisions would strengthen the DOL’s H-1B enforcement authority, require employers to disclose pay information, and close loopholes that have allowed employers to circumvent the annual cap on H-1B visas, according to a Republican source in Senate leadership.

The immigrant advocacy group Immigration Voice announced on its Facebook page its excitement “that we have a deal in the Senate that further improves the Fairness for High Skilled Immigrants Act by including additional protections for American Workers.”

“We believe that this carefully crafted deal will enable the bill to pass in the Congress,” the group said.

But it was Sen. Rand Paul (R-Ky.) who blocked the Fairness for High-Skilled Immigrants Act (S. 386) when Lee tried to bring it to the floor late last week. Paul, who co-sponsored the bill in the prior Congress, said he had “offered a modest compromise amendment” and that “better dialogue” was needed before a floor vote.

The amendment would create a visa carve-out for nurses, who advocates say would be shut out of green cards if S. 386 were to pass in its current form.

Paul is one of several senators—both Republican and Democratic—with a hold on the bill, making its future uncertain. For Democrats, the chief concern is that the bill would reallocate green cards among immigrants of different nationalities without increasing green cards to accommodate all workers seeking one, according to a Democratic aide.

A comprehensive bill that, among other things, boosts green card numbers would be a better approach to the backlog issue rather than just shifting around existing green cards, the aide said.

Poison Pill

Responding to Paul on the Senate floor, Lee said the nurse amendment isn’t compatible with the legislation and effectively would kill it.

Allowing a carve-out for one profession is likely to draw similar requests from other legislators championing other professions, which in turn would make the bill bigger and broader than what can support a consensus needed for passage, said Lee spokesman Conn Carroll.

A representative for Paul’s office couldn’t be reached for comment.

The bill primarily would benefit skilled Indian and Chinese nationals, many of whom face a decades-long green card wait. A transition period would allow immigrants from other countries who’ve already been approved for a green card to maintain their place in line even if Indian and Chinese immigrants otherwise would’ve pushed them back.

Eight-Year Wait


Following that transition period, however, the bill would create a permanent wait time of seven to eight years for EB-3 visas, according to an immigration attorney who works on issues affecting immigrant nurses. The only visa available to nurses, the EB-3 is for skilled, unskilled, and professional workers.

No hospital will petition for a nurse who won’t start working until eight years in the future, he said.

Unlike most workers currently in the green card backlog, nurses aren’t entitled to H-1B visas and so have no way to work in the U.S. while waiting for their green cards, the attorney said.

Roughly 15% of nurses who took the National Council Licensure Examination (NCLEX) to become a registered nurse in 2018 were trained abroad, according to the National Council of State Boards of Nursing. The top country of origin was the Philippines, with 10,297 out of the 16,796 first-time exam takers in 2018 who were educated overseas.

According to the July 2019 State Department Visa Bulletin, EB-3 visas for Filipinos are available as soon as the person applies, subject to processing times. By contrast, EB-3 visas are only available to Indian workers who applied in July 2009 or earlier.

Most nurses are U.S.-born, but “rural areas and urban centers have a hard time getting all the nurses they need,” said Bruce Morrison, a lobbyist for the American Hospital Association. The AHA opposed the bill in the previous Congress because of this concern.

The domestic supply of nurses needs to be increased, but “until then we have patients to serve,” he said.

Political Move

S. 386 has 34 co-sponsors, representing both sides of the aisle. The House version, H.R. 1044, has 311 bipartisan co-sponsors.

Its chief sponsor, House Judiciary Immigration and Citizenship Subcommittee Chairman Zoe Lofgren (D-Calif.), last month asked to put the bill on the Consensus Calendar, which would require it to be considered on the floor without going through committee. The House bill doesn’t contain any H-1B language.

Lee caught a lot of people off guard when he took to the Senate floor, a move that’s usually done when all other avenues for reaching a deal on a bill have been exhausted, according to the Democratic aide. But doing so without even talking to Democrats makes it look like more of a political move than one to actually get the bill passed, he said.

“This legislation, even though it’s over 10 years old, has never had a hearing,” said Morrison, a former Democratic congressman who sponsored the House version of what would become the Immigration Act of 1990. That “raises questions about why people don’t want to hear the concerns and try to accommodate them.”

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bloomberglaw.com

To contact the editors responsible for this story: Simon Nadel at snadel@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com