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What Is the Fairness for High-Skilled Immigrants Act of 2020, which recently passed in the Senate? What will its effects be?

By December 14, 2020April 30th, 2021Immigration
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Is it true that the Senate passed a bill that would affect the green card backlog?

Yes — on December 2, the U.S. Senate passed an amended version of the “Fairness for High-Skilled Immigrants Act” which passed the U.S. House of Representatives last year. In general, the bill would phase out existing per-country limits on employment-based green cards. In the context of family-based green cards, the bill would increase the current 7% per-country limit to 15% per country (meaning that no single country would receive more than 15% of the total number of green cards available in a given year).

Is the Act likely to become law, and what additional steps are required before it does?

The version of the bill that recently passed the Senate is substantially different from the version that passed the House in 2019. As a result, the two versions must be reconciled into a final version. While not certain, many are optimistic that Congress will successfully pass a reconciled bill. If this happens, the bill would then be presented to President-elect Joe Biden for signature. Since Vice President-elect Kamala Harris was a lead sponsor of the bill, many believe that Biden would likely sign the bill into law.

What is the per-country cap under existing law?

Under existing law, there is a limited number of employment- and family-based green cards that can be given to those born in a specific country. This is called the per-country cap, and it is set at 7% of the total number of employment- and family-based green cards available in a given year. The cap applies to the country in which an individual was born, rather than the country in which they have citizenship (if the two are different — see our related blog post here). Some countries do not come close to reaching the cap. However other countries, like China and India, do. This has created a large waitlist for individuals born in these countries, which is reflected in the monthly visa bulletin. Not surprisingly, since the length of wait is determined by a person’s birthplace, the per-country cap has been consistently criticized as being discriminatory.

How would the bill affect employment-based green cards?

The bill would gradually eliminate the 7% per country cap on employment-based green cards, ultimately clearing the backlog that exists for individuals born in high-demand countries such as China and India. Under the bill, employment-based green cards would be granted on a first-come, first-served basis. Note that the Senate bill does have a phase-in period of 11 years, so the changes would not be immediate if that version of the bill moves forward.

Would the bill affect family-based green cards?

Yes, the bill would also affect family-based green cards by raising the current cap from 7% to 15%. While this is not as dramatic a change as the one that would apply to employment-based green cards, the change is viewed as beneficial and is expected to expedite the wait for those who are in the existing backlog (particularly those born in Mexico, the Philippines, India, and China).

What other effects would the bill have?

The bill, as passed by the Senate, would include a number of additional measures beyond impacting the per-country cap. It would bar adjustment of status to those affiliated with the Chinese Communist Party, provide a green card preference for nurses and physical therapists, expand employment benefits for those waiting for a green card after their employment-based petition was approved, and impose a number of restrictive obligations on employers of H-1B workers.

Overall, will the effects of the bill be positive or negative?

By reducing the existing green card backlog for some countries — which has resulted in individuals born in specific countries waiting for a decade or longer for their green cards — the bill is generally viewed as positive. However, a reduction in the wait time for some countries means that the wait time will increase for others. Also, family-based green cards will continue to be subject to the discriminatory birthplace-based cap (albeit at a higher limit). Additionally, the included provisions regarding H-1B enforcement will likely create significant additional expenses and risk for employers that participate in the program.

As Congress works to reconcile the Senate and House bills, we will have a much better sense of the actual impact that the bill will have, and the costs and benefits of that impact.

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