On July 10, 2019, the House of Representatives, with significant bipartisan support, passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) by a vote of 365 to 65. If passed by the Senate, and signed by the President, the bill would eliminate the “per country cap” for employment-based visas and increase the cap to 15 percent for family visas. Immigrant visas would be issued on a first come first serve basis. Under the present system, 140,000 employment-based green cards are issued with a 7% cap (25,620 visas) on any individual country every fiscal year.
Though the bill includes a three-year transition period, which reserves a certain percentage of EB-2 and EB-3 visas for applicants from other countries during that period, statistics related to the backlog suggest that the shortage of immigrant visas will virtually immediately switch to all other immigrants. And then after the transition period, Indian immigrants would receive the vast majority of employment-based green cards for at least a few years to clear the current backlog. Thereafter, wait times for everyone would stabilize but remain lengthy. Hence, critics argue that abolishing the country cap safeguard would eliminate diversity and result in a virtual monopoly of employment-based green cards from citizens of one or two countries, namely India and China.
The Senate companion bill (S. 386) mirrors the elimination of the per-country caps for employment-based visas, in addition to an amendment that would impact the H-1B process. Notably, the amendment proposes mandatory posting requirements for the position offered on the DOL’s website, expanded DOL compliance audits, expanded review of LCAs, and elimination of the B-1 in lieu of H-1B.
Given the current Senate Calendar we think it is unlikely that this bill would be passed through the Senate prior to the commencement of the next Fiscal year in October, so we do anticipate current retrogressed categories to return to July 2019 Bulletin levels in October. Additionally, while the bill enjoys wide support in the Senate, we are unsure about the President’s interest in signing a law that will favor giving greencards to people from China and India.
This piece of legislation is clearly seeking to address a problem that is years in the making and it is fair to remove the caps and to prioritize long delayed Indian and Chinese greencard filings. At the same time Congress was seeking to remove the cap they should have also doubled or tripled the number of employment-based immigrants processing through our system. We assume the prevailing thought was to avoid asking for new visa numbers and instead just change the formula. But Congress, in our opinion, is just as likely to get the President to sign this bill as one that contained increases in numbers. While this piece of legislation is a good first step in this area, we are not overly optimistic regarding its likelihood of success. Only time, and political pressure will influence the final outcome.
Our firm will continue to monitor congressional developments as they relate to this legislation and provide updates. We also anticipate holding webinars in the future to discuss the impact should the likelihood of passage increase.
In a recent July Federal Court decision, District Court Judge Reggie Walton allowed an alliance of technology workers the right to challenge the entire OPT system as it currently exists. Previously the same group took DHS to court over the earlier STEM EAD allowance that granted 17 month EAD extensions. The Obama Administration agreed that the prior STEM EAD roll-out process was flawed and engineered the new 24-month STEM EAD regulations while the original litigation was pending. As the new regulations made the original claims of the alliance moot, it appeared their day in court was over. However, in suspending that court action the court permitted the alliance to return and raise issues related to their right to challenge the entitle OPT system. On July 1, 2019 Judge Walton ruled that they can challenge the original OPT program rules that have been in effect since 1992 and also permitted other interested parties to join the litigation (as an aside big tech companies have significant interest in this suit and as a result are approved to intervene). This order now permits the alliance their opportunity to challenge the entire structure of the OPT program and creates significant concern among all who rely on it.
In recent hearings on Capitol Hill, lawmakers have been questioning USCIS officials to better understand the reason for significant delays in processing. At the same time the committee invited other guests, including AILA immigration attorney representatives who confirmed that many of the delays were caused by USCIS’s own misguided policies and additional steps they’ve added to processing. The committee also questioned whether the number of RFEs and Denials played a role in increasing workload, noting that in fiscal 2015 the denial rate for H-1Bs was 6% whereas in the first quarter of fiscal 2019 USCIS confirmed a 32% denial rate despite no changes in the law being passed. This hearing was an attempt to shed light on the inefficiencies within DHS and to question policy changes they have made.
We will continue to monitor Congressional oversight of DHS.
The U.S. Supreme Court has agreed to hear the appeals of the Trump Administration’s termination of the DACA program during its next term. Since the announcement of the program’s termination in 2017, three federal district courts have issued nationwide preliminary injunctions, preventing the program’s end, and four appeals court have ruled against its rescission. In its order, the Court consolidated three pending DACA appeals, and the Court will decide whether the decision to wind down the program is reviewable, and if so, whether it was
lawful. A decision is not expected until the summer of 2020.
Effective July 11, 2019 the U.S. and Canada began the latest stage of their data sharing initiatives to better secure the joint U.S./Canada border. Now any traveler entering Canada will create a travel entry into Canada that will be shared with the U.S. CBP and be treated as an “exit record” for U.S. purposes. The information shared is basic biographical data such as name, date of birth, passport number, etc. This will also work in the opposite direction with the “exit record” for Canadian purposes being represented by the U.S. entry data Canadian authorities receive.
With this new change in data sharing the U.S. and Canadian governments are effectively closing the loop on individuals from Canada who previously may have overstayed their status in the U.S., or people from other countries who have overstayed and don’t require a Canadian visa to enter Canada, from entering Canada and doing a border turnaround and reentry to correct such errors. We’ll monitor the implementation of this program and modify our travel advisories as necessary to account for this change.
On June 7, the U.S. Department of State announced that it will recognize the decree from the Venezuelan opposition-controlled National Assembly extending the validity of already issued Venezuelan passports for five years. Venezuelan’s may use their expired passports for U.S. visa applications or other consular processes. Similarly, Customs and Border Patrol will recognize the passports for purposes of entry into the United States as long as the traveler is otherwise admissible.
The August 2019 visa bulletin has experienced significant retrogression in many categories compared to July 2019 in terms of final action dates for employment-based visa applications. EB-1 Worldwide has retrogressed to July 1, 2016. EB-1 China has retrogressed to July 01, 2016 while EB-1 India saw no movement. EB-3 Philippines has retrogressed to July 1, 2016. EB-2 Worldwide has retrogressed to January 1, 2017. EB-2 China has advanced to January 1, 2017, while India has advanced to May 2, 2009; EB-2 Philippines has retrogressed to January 1, 2017. EB-3 Worldwide has retrogressed to July 1, 2016. EB-3 China has advanced to July 1, 2016. EB-3 India has retrogressed to January 1, 2006, and EB-3 Philippines has retrogressed to July 1, 2016. With these retrogressions taking effect on August 1, and likely continuing until October 1st, any individual who is current in the month of July should move as quickly as possible to file their adjustment of status application before the end of the month.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **