The bill eliminates the 7% country cap for employment-based immigrant visas (green cards), which will help ease the massive backlog faced by Indians. In addition, it also increases the per-country cap on family-based immigrant visas from the current 7% of the total number of such visas available in a particular year to 15%.
Senator Kevin Cramer, who presided over the Senate as this bi-partisan bill was passed, said in a series of tweets that because of the arbitrary per-country caps, the legal status of thousands of hard-working immigrants who bridge the gap between America’s workforce shortage and its immediate need for physicians, software developers, and other highly-skilled workers is constantly in jeopardy.
“The Fairness for High-Skilled Immigrants Act fixes that by – without increasing the number of employment-based visas – creating a more merit-based system that levels the playing field for high-skilled immigrants,” he tweeted. The employment‐based system has a cap of 140,000 green cards per year, which remains unchanged.
TOI had recently covered a study done by CATO Institute which had pointed out that the employment based green card backlog from India (EB-2 and EB-3 skilled category) has reached 7.41 lakh in April 2020, with an expected wait time of 84 years.
However, the end of the road has not yet been reached. An earlier bill passed by the House was significantly different. The two bills will need to be reconciled and a final bill passed. Then comes the issue of a signature from President Trump – there is a likelihood that this will be the stumbling block.
S.386, as passed by the Senate, sets down transition rules by reserving a percentage of EB-2 and EB-3 immigrant visas for those who are not from India and China (the two countries with the largest backlog in these categories) for the first nine years post enactment of the bill. EB-2 and EB-3 categories are employment based green cards alloted to skilled workers and their dependents.
This transition has been built in to avoid Indians and Chinese dominating the allocation of green cards, once the country caps are lifted. The reservations will be higher in the initial years. To illustrate, in the first year after enactment, 30% of EB-2 and EB-3 visas would be reserved for countries not affected by the backlog, or the ‘Rest of World’ (ROW) applicants. In years two and three, 25% and 20% respectively of EB-2 and EB-3 visas would be reserved for ROW applicants. Further, of the unreserved visas not more than 85% can be allotted to immigrants from any single country.
In its press release, Immigration Voice, a US based not for profit, whose object is to alleviate problems faced by high-skilled workers said, that S. 386 creates a fair and equitable, ‘first come, first serve’ system for receiving employment-based green cards, putting an end to the discriminatory quota system that has left over one million Indian high-skilled workers in the US with decades-long line while individuals from other countries face no wait time at all to receive a green card.
Aman Kapoor, the co-founder and president of Immigration Voice stated that: “Immigration Voice is absolutely thrilled that after 15 years of tireless effort, the Fairness for High Skilled Immigrants Act has finally received the unanimous support of every member of the US Senate. People are finally understanding that no matter what else is wrong with our immigration system, we can all agree that discrimination should never be a basis for deciding who is given access to permanent residency in the US.”
“The Fairness for High Skilled Immigrants Act is a win-win for the American people. It will grow our economy by allowing highly skilled immigrants to start their own companies and will make sure that these new companies hire American workers who are made more attractive by this bill,” he added.
Protection for American workers
Immigration Voice also points out that the Senate bill has improved upon the earlier house bill by adding more enforcement provisions to protect American workers and encourage their hiring over foreign workers.
In the first nine years after implementation, not more than 70% of the green cards can go to H-1B visa holders and their dependents. From the subsequent years, this is reduced to 50%. This criterion does not apply to those from the medical profession or those who have obtained national interest waivers.
In addition, the bill bars 50:50 companies (those with 50 employees and more in the US or with 50 per cent of staff on H-1B work visas) from bringing in more employees on H-1B into the US.
New York based immigration advocate, Cyrus D Mehta has tweeted, “While S386 removes country of birth discrimination, the 50-50 provision will badly impact IT companies though they can still file H-1B extension and change of employer requests.”
An immigration consultant attached to an India headquartered IT company isn’t much perturbed, “Business models have changed, local hiring is on the rise, and with the pandemic a lot of work is also being done offshore. Given that our existing employees have a better chance at obtaining a green card, this restriction should not be a major impediment.”
However, S.386 has come in for its share of criticism especially from associations representing American workers. A twitter handle @USTechWorkers, tweets, “S.386 isn’t about equal treatment. It takes an already flawed immigration program and exacerbates it even further to create an unequal system for everyone else. Worst of all, it rewards the abusers of the H-1B. The other provisions are meaningless and don’t protect Americans.”
The lead sponsors of this bill in the Senate were Senators Mike Lee and Kamala Harris. However, passage of the bill by the Senate is not the end.
The Senate version is significantly different from the House version (much earlier, the House had passed a bill to lift country caps on green cards). Now the differences need to be reconciled, the reconciled version will then pass both houses again and finally the bill must be signed by the US President.
Greg Siskind, founding partner of Siskind Susser, an immigration law firm has tweeted, “Happy that S. 386 has finally passed in the Senate and we’re a step closer to ending nationality discrimination in the visa allocation system. However, there are significant differences with the House version that need to be negotiated (including a China provision that is going to be viewed as controversial unless clarified). “
The Senate bill states that the Secretary of Homeland Security shall not admit to the US or adjust the status of an alien (foreign national) affiliated with the Chinese military forces or the Chinese Communist Party.
“I would suggest people temper their expectations. Not at all clear what the House thinks about this and how much room there is to tweak if there are changes demanded. Also, we have a President likely to veto anything that is not 100% to his liking,” he adds.
Jessica Vaughan, director of policy studies at Center for Immigration Studies, which is seen as a protectionist group, tweets, “This would make a very significant change to the employment green card system, and moves us farther away from a merit-based process. It rewards the companies that replaced Americans with guest workers. Will the President sign it?”