Immigration Bill Would Eliminate Per-Country Quota in EB & Increase FB Quotas

A bill entitled the Fairness for High-Skilled Immigrants Act (H.R. 3012) was introduced in the U.S. House of Representatives on September 22, 2011. This proposal would eliminate the country-based eligibility limits for employment-based (EB) visa numbers. If passed, this bill would significantly change the system for allocating EB visa numbers, and eliminate the country-of-chargeability-based disparity in EB backlogs. Many MurthyDotCom and MurthyBulletin readers, particularly those from visa-backlogged countries, would love to see all priority dates become current, based on a reversal of per country limits for EB candidates. It is important to note that this is just a bill and not the law at the time of this writing. Therefore, foreign national workers and their employers who wish to see the law changed in this way should contact your elected representatives in Congress and request support for this bill to become the law.

Co-Sponsors of the Bill

H.R. 3012 was introduced by Representative Jason Chaffetz (R-Utah) and is co-sponsored by Representatives Tim Griffin (R-Arizona) and Lamar Smith (R-Texas). It was referred to the House Judiciary Subcommittee on Immigration Policy and Enforcement. As we explain, this proposed legislation would do away with the limits on visa number usage by country, and thus would make EB visa numbers available on a purely first-in / first-out basis (while retaining existing categories and limitations by category).

Elimination of the 7%-Per-Country Limit

This bill would eliminate the current per-country limit, or cap, of seven percent of the worldwide quota for nationals of each country in all employment-based (EB) green card categories. It is this limitation that causes the significant disparity in processing times and eligibility for employment-based permanent residence for individuals born in different countries. As regular MurthyDotCom and MurthyBulletin readers are aware, for example, the EB2 category has enough visa numbers to meet the demand for all but two countries. The two oversubscribed countries, India and China, face years of visa number backlog, as the demand for visa numbers from these high-immigration countries far exceeds the seven percent limit.

Increase of FB Cap Per Country from 7% to 15%

Separately, the proposed legislation would also address the per-country limitations on family-based (FB) visa number usage. The FB categories have backlogs that impact all countries of origin in each preference category. However, some countries face far longer waiting times than others. The measure would immediately increase the family-based, per-country cap from seven percent to fifteen percent. This would reduce the country-based differences in backlogs and waiting times in FB cases.

Phase-In Period to Enable Smoother Transition

The bill sets out a three-year transitional (phase-in) period. In the initial phase, the U.S. Citizenship and Immigration Services (USCIS) would follow a strict first-in / first-out (based on priority date) system within the existing employment-based green card preference category structure. The phase-in system is a bit complicated.

As proposed, during the first three years of phase in, the pure first-in / first-out would apply to 85 percent of available EB visas. (The remaining 15 percent would be set aside for those who were not chargeable to the two highest-demand countries.)

During the next two years, the first-in / first-out would apply to 90 percent of available EB visas, with a ten percent set-side for countries other than the two that have the highest demand. The visas that are available on a first-in / first-out basis during the phase in (85 percent of the numbers the first year, and 90 percent of the numbers the second as well as the third year) are referred to as unreserved visas.

Other Ways to Protect Countries with Lower EB Usage

The remaining set-aside visas (15 percent of the numbers the first year and ten percent in each of the next two years) have further restrictions on their usage, in order to keep limitations on the usage by any single country. During the three-year phase in of the first-in / first-out employment-based system, no group of applicants from a single country may receive more than 70 percent of the unreserved employment-based visas. No group of applicants may receive more than 25 percent of the total reserved (set-aside) visas during the three-year phase-in period.

Track Progress of the Bill on Library of Congress WebSite

Readers interested in tracking this particular piece of legislation may do so on line. The Library of Congress posts daily news regarding pending federal legislation.

Conclusion: Bill is Not Law – Act Now!

We know that many MurthyDotCom and MurthyBulletin readers would benefit from any increase in the seven percent limit on usage of EB and FB visa numbers if this bill becomes the law. It is worthwhile for individuals and employers to take an active stand in support of beneficial legislation by contacting their elected representatives in the U.S. Senate and the House of Representatives to request their support for the particular bill.

Legislative proposals often undergo many changes and amendments during the legislative process prior to passage, and many others are never passed into law at all. We stress that it is important to understand that this is only a proposal at this time, and that nothing will change unless this bill is enacted into law. If delays in the permanent resident (“green card”) processing system have negatively affected you, your company, or your family, be proactive. This is a first step in the right direction. When members of Congress hear from their constituents on a particular piece of legislation, they are more likely to enact a bill into law.

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