Featured Issue: Legislation Impacting the Per-Country Numerical Limitation

Latest Developments on Senate Legislative Efforts

October 17, 2019

Senator Mike Lee (R-UT) attempted a unanimous consent vote on S. 386, as amended. The unanimous consent vote failed after Senator Durbin (D-IL) objected.

October 16, 2019

Senator Dick Durbin (D-IL) introduced the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act. If enacted the RELIEF act would:

  • Eliminate the family and employment green card backlog over five years in the order in which applications were filed (based on S. 744, the Senate CIR bill).
  • Classify spouses and children of LPRs as immediate relatives and exempting derivative beneficiaries of employment-based petitions from annual green card limits (based on S. 744, the Senate CIR bill).
  • Protect “aging out” children who qualify for LPR status based on a parent’s immigration petition.
  • Lift country caps (House-passed H.R. 1044).
  • Extend the “hold harmless” clause from H.R. 1044 that exempts immigrant visa petitions approved prior to enactment from the lifting of country caps to petitions approved for five years after enactment.

See the RELIEF Act bill summary for more information.

AILA will continue to provide updates as they become available.

On February 7, 2019, the Fairness for High-Skilled Immigrants Act of 2019 was introduced in the House and Senate (H.R. 1044 / S. 386). If enacted, this bill would eliminate the per-country numerical limitation for all employment-based immigrants, and increase the per-country limitation for all family-sponsored immigrants from seven percent to 15 percent. One significant feature of this bill that distinguishes it from prior versions of this legislation is a "do no harm" provision. This provision states that no one who is the beneficiary of an employment-based immigrant visa petition approved before the bill's enactment shall receive a visa later than if the bill had never been enacted. Notably, the "do no harm" provision only applies to employment-based immigrants and does not apply to family-sponsored immigrants.

Given the recent passage of H.R. 1044, Fairness for High-Skilled Immigrants Act, on July 10, 2019, AILA has curated the following webpage where AILA members can quickly and easily view the House and Senate bills, AILA resources on this legislation, related bills, and other relevant resources. Given the divergent views of our members regarding this legislation, AILA has not taken a position on the bill. However, as we recognize the significant impact this legislation would have on our members' practices if enacted, AILA is committed to providing relevant resources on this legislation on the following webpage.

The Fairness for High-Skilled Immigrants Act of 2019

AILA Resources on the Fairness for High-Skilled Immigrants Act of 2019

Other Related Legislation in the 116th Congress Impacting Per Country Numerical Limitation

Analysis Regarding the Impact of Fairness for High Skilled Immigrants Act

AILA is not aware of a comprehensive, independent, and publicly available analysis regarding how the House and Senate versions of the Fairness for High-Skilled Immigrants Act of 2019 would impact both the current employment-based and family-sponsored immigrant visa queues as well as future immigration flows. There are, however, a handful of piecemeal analysis that have been conducted on the impacts of per-country legislation, which are provided below. Note that two of these resources, specifically the Congressional Research Service reports, were published before the introduction of H.R. 1044 and S. 386 and therefore do not take into consideration the impact of the "do no harm" provision on employment-based immigrants.

Governmental Resources

Non-Governmental Resources

AILA Insights on Per Country Legislation

AILA Insight is an informative digest with articles written by AILA members. Articles are shared as they are submitted and are compiled and distributed to AILA members on a quarterly basis. The speaker's/author's views do not necessarily represent the views of AILA.

Overview of the Per-Country Numerical Limitation on Immigrant Visa Issuances

Resources on Immigrant Visa Backlog

Sampling of Articles in the Media

The following articles are a sampling of news coverage regarding the Fairness for High-Skilled Immigrants Act of 2019. This list of articles is not exhaustive. The viewpoints expressed in these articles do not necessarily represent the views of AILA.

September 2019 Unanimous Consent Vote

Update from September 26, 2019, 12:00 pm (ET)

It appears that the unanimous consent request for this bill has been postponed.

Update from September 25, 2019

Today, Senators Mike Lee (R-UT) and David Perdue (R-GA) reached a deal to provide a set aside of 7,200 visas annually for foreign nurses and their dependents for eight years in the EB-3 visa category. The amended language specifies that no more than 2,800 of the 7,200 visas can go to dependents. The remainder of the visas must go to foreign nurses. Senator Lee is expected to seek a live unanimous consent vote on the bill on Thursday, September 26, 2019.

Update from September 19, 2019, 3:00 pm (ET)

The unanimous consent vote on the substitute amendment to S. 386, the Fairness for High-Skilled Immigrants Act of 2019, did not pass due to an objection by Senator David Perdue (R-GA). Senator Lee stated at the conclusion of the vote that he anticipates working with the Senator from Georgia to resolve their differences. Stay tuned for more information as it becomes available.

Update from September 18, 2019

Unanimous Consent Vote on Senate Substitute Amendment to H.R. 1044, Fairness for High-Skilled Immigrants Act of 2019, Expected on September 19, 2019

On September 18, 2019, Senator Mike Lee (R-UT) proposed a substitute amendment to S. 386, Fairness for High-Skilled Immigrants Act of 2019, which amended the version passed by the House on July 10, 2019 (H.R. 1044). Senator Lee will likely seek a unanimous consent vote on the floor of the Senate tomorrow, September 19, 2019.

The substitute amendment uses the House version of the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) as the basis of its amendment, with a few key changes:

  • Includes a set-aside provision for no fewer than 5,000 visas for shortage occupations, as defined in 20 C.F.R. 656.5(a), which would include nurses and physical therapists, for Fiscal Years 2020-2028.
  • Retains the H-1B internet posting requirement proposed in the Grassley Amendment to S. 386, with some change. Specifically, the H-1B internet posting requirements will not apply to an H-1B nonimmigrant who has been counted against the H-1B cap and is not eligible for a full 6-year period or an H-1B nonimmigrant authorized for portability under INA 214(n). A summary of the Grassley amendments are available for review.
  • Retains the “do no harm” provision for all EB petitions approved on the date of enactment and the three-year transition period for EB-2 and EB-3 immigrants, but does not include EB-5 immigrants in the transition period.

If the vote on the Senate Amendment is successful tomorrow, H.R 1044, as amended, would return to the House for consideration. AILA’s understanding is that the Senate passed version of H.R. 1044 would be placed on the House suspension calendar for consideration and final passage.

However, if the vote fails, the sponsors of H.R. 1044 in the House will seek a “must pass” vehicle in which to include the provision.

Cite as AILA Doc. No. 19080632.