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Senate Bill Ending Per-Country Visa Caps Faces Uncertain Future

Dec. 3, 2020, 9:00 PM

While the U.S. Senate late Wednesday night passed a long debated rule to end per country caps on employment-based green cards, the bill’s path to implementation is uncertain at best.

The Fairness for High-Skilled Immigrants Act (H.R.1044, S.386) may be one of the only immigration measures to make it through the chamber this year as several prior attempts failed over the past 18 months. But, the final version of the bill presented by Sen. Mike Lee (R-Utah) contains amendments that could sink its chances for reconciliation with the House version passed in July 2019.

Lawmakers only have until the end of the session before they would have to start their efforts all over again with a new Congress sworn in on Jan. 3, and a new administration 17 days later.

“We’ve been through numerous versions in the Senate,” said David Bier, an immigration policy analyst at the Cato Institute’s Center for Global Liberty and Prosperity. “It’s quite a different bill from what passed the House.”

Potentially controversial additions to the legislation include broader restrictions for foreign nationals who have been affiliated with the Chinese military or the Chinese Communist Party, curbs on green card sponsorship for H-1B dependent employers, and limits on the number of green cards available to H-1B visa workers.

The amendments “decrease the likelihood that this thing gets done in Congress, because it creates a tougher negotiation,” said Doug Rand, co-founder of Boundless Immigration, a technology company that helps immigrants obtain green cards and citizenship.

“I don’t see this as going through a traditional conference process, so it becomes a ping pong game,” Rand, who served as a former assistant director for entrepreneurship in the Obama White House and worked on immigration policy, said. “It’s unlikely the House passes the Senate version, so they’ll pass yet a different version,” and the cycle continues.

U.S. Rep. Zoe Lofgren (D-Calif.), who chairs the House Immigration and Citizenship Subcommittee and authored the original bill, has already declared her lack of support for the amended version.

“While I recognize the sincerity of all Members and Senators struggling to find solutions, unfortunately the provisions sent to the House by the Senate yesterday most likely make matters worse, not better,” Lofgren said in a statement provided to Bloomberg Law. “I plan to swiftly and thoughtfully work with my colleagues to resolve outstanding issues and get a measure across the finish line that can pass both Houses of Congress.”

Changes for H-1B Workers

Overall, the legislation would repeal a provision of the Immigration and Nationality Act that prevents nationals of any one country from obtaining more than 7% of the employment-based green cards available in a year.

In practice, the measure would provide a faster path to lawful permanent resident status for thousands of mostly Indian skilled workers who’ve been stuck in a visa backlog that’s projected to last decades.

But while the backlog may be eased in the short term, other parts of the latest version of the bill could re-create a backlog for H-1B visa holders a decade into the future.

The legislation passed Wednesday says that in the first nine years after implementation, no more than 70% of employment-based green cards can go to H-1B visa holders, and in year 10 and beyond, that number is capped at 50%.

“This would be a permanent provision that limits the number of green cards that can go to H-1B holders,” Bier said. “Right now, it probably wouldn’t have a big effect, because of the fact that Indians are already being limited in other ways, and this would be somewhat duplicative to that under the bill.”

But in the 10th year and onward, it could have a bigger effect, especially if the H-1B program is expanded, he said.

According to immigration attorney Nandini Nair, information technology consulting firms that rely on H-1B workers are already expressing concerns in regard to a provision that would bar companies with at least 50 employees and at least 50% of workers are H-1B holders from sponsoring additional employees for green cards.

In response to those calls, she has advised clients to “temper expectations,” she said. “I have been in this business long enough to know that sometimes it goes nowhere.”

White House Support?

Even beyond ironing out differences between the House and Senate versions is the question of whether President Donald Trump would sign the bill into law.

“The president has to be inclined to sign this type of bill,” said Nair, a partner at Greenspoon Marder LLP in Edison, N.J. President Trump isn’t likely “to sign anything into law that will help legal immigrants get green cards faster.”

When the bill was last brought to the Senate floor for a unanimous consent vote, Florida Republican Rick Scott objected, killing the effort. Scott said then that the White House agreed with his concerns that more time was needed to review the proposal and it’s potential effect on the immigration system.

“There’s only been negative feedback about the bill from the administration,” Bier said. “But nothing definitive on a veto or specific changes to the legislation.”

Rand predicted that in the event the bill doesn’t make it to the finish line this session, it’s definitely one to keep an eye on in the next Congress, “particularly if Republicans retain control of the Senate.”

To contact the reporter on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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