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Senate Defeats Attempt to Eliminate H-1B and Backlog Relief from Budget Reconciliation Bill

11/3/05 AILA Doc. No. 05110340. Business Immigration, H-1B & H-1B1 Specialty Occupation, L-1 Intracompany Transferee

As background, the Senate Judiciary Committee, as part of the budget reconciliation process, held a markup on October 20 of a proposal to provide temporary relief from the H-1B visa blackout and the employment-based immigrant visa backlogs in exchange for increased fees on some petitions. Although it was vehemently opposed by some Members of the Committee, the proposal ultimately passed out of Committee by a strong 14-2 vote. The final package would:

  • Impose a new $500 fee on immigrant visa petitions for the EB-1, EB-2, and EB-3 categories.
  • Recapture unused employment-based visas from prior years for immediate allocation of up to 90,000/year.
  • Exempt spouses and minor children from counting against the annual cap on employment-based immigrant visas.
  • Allow individuals to apply for adjustment of status before an immigrant visa is deemed currently available. (Of course, approval could not occur until the visa number is available.)
  • Recapture approximately 300,000 unused H-1B numbers dating back to FY 1991. As a result of an amendment by Senator Feinstein, 30,000 rather than 60,000 would be available annually. (In other words, effectively raising the cap from 65,000 to 95,000 for at least 10 years.)
  • Impose a new fee on the recaptured H-1B visas so that the fees on the original 65,000 H-1B allotment remain unchanged but the additional 30,000 available annually carry an additional $500 fee.
  • Impose a new $750 fee on L-1 visas. (This was part of Senator Feinstein's amendment and was necessary to offset the reduction in revenue resulting from the limitation on recaptured H-1B numbers from 60,000 to 30,000.)

During floor debate on the Senate’s overall reconciliation package (S. 1932), Senator Byrd offered an amendment to remove from the final package the H-1B and immigrant visa retrogression provisions passed by the Senate Judiciary Committee and replace them with a provision that mirrored the House’s version, which simply imposes a $1,500 fee increase on L visas. That amendment was rejected by an overwhelming vote of 85-14. (See how your Senators voted here). This is a tremendous victory for immigrants. The Senate ultimately approved the Budget Reconciliation Package by a vote of 52-47.

Unfortunately, the fight is not over. The Senate’s package still must be reconciled in conference with the House’s alternative budget reconciliation bill which, as noted above, imposes a $1,500 fee increase on L visas. Although we can congratulate ourselves on our success so far, it will require an equally big push to hold onto these gains and make sure the proposal survives the Senate-House conference. Client action is key to these efforts, so keep your clients engaged and activated! We will keep you updated on the conference timing and process as it comes into focus. In the meantime, we need to maintain the pressure on Congress and the momentum we have generated for meaningful relief.


On October 20, as part of the budget reconciliation process, the Senate Judiciary Committee held a markup of a proposal to provide temporary relief from the H-1B visa blackout and the employment-based immigrant visa backlogs, in exchange for increased fees on some petitions. Although it was vehemently opposed by some Members of the Committee, the proposal ultimately passed out of Committee by a strong 14-2 vote. A number of amendments were defeated, including one by Senator Sessions (R-AL) to adopt the House Judiciary Committee's approach of levying a $1,500 tax on L visas, and one by Senator Hatch (R-UT) to impose a 5% increase on all immigration fees. An amendment offered by Senator Feinstein (D-CA) to reduce the number of recaptured H-1B visas available annually (from the original proposal of 60,000 to 30,000) did pass by a 10-5 vote. The final package would:

    1. Impose a new $500 fee on immigrant visa petitions for the EB-1, EB-2, and EB-3 categories.

    2. Recapture unused employment-based visas from prior years for immediate allocation of up to 90,000/year. (Estimates indicate there are only 90,000-100,000 unused numbers to be tapped.)

    3. Exempt spouses and minor children from counting against the annual cap on employment-based immigrant visas. (Estimates are that this would lead to an annual increase of 80,000-90,000 employment-based immigrant visas.)

    4. Allow individuals to apply for adjustment of status before an immigrant visa is deemed currently available. (Of course, approval could not occur until the visa number is available.)

    5. Recapture approximately 300,000 unused H-1B numbers dating back to FY 1991. As a result of Senator Feinstein's amendment, 30,000 rather than 60,000 would be available annually. (In other words, effectively raising the cap from 65,000 to 95,000 for at least 10 years.)

    6. Impose a new fee on the recaptured H-1B visas so that the fees on the original 65,000 H-1B allotment remain unchanged but the additional 30,000 available annually carry an additional $500 fee.

    7. Impose a new $750 fee on L-1 visas. (This was part of Senator Feinstein's amendment and was necessary to offset the reduction in revenue resulting from the limitation on recaptured H-1B numbers from 60,000 to 30,000.)


Today's positive developments resulted from the incredible collective advocacy efforts of AILA members and their clients! Indeed, at least three of the Senators mentioned during the markup that they had been inundated with calls and correspondence from companies highlighting the implications of the H-1B crisis.

BUT, the fight is not over. This proposal still must be reconciled in conference with the House's alternative budget reconciliation bill, which imposes a $1,500 fee increase on L visas. Although we can congratulate ourselves on our success so far, it will require an equally big push to hold onto these gains and make sure the proposal survives the Senate-House conference. Client action is key to these efforts, so keep your clients engaged and activated! We will keep you updated on additional advocacy opportunities. Thanks for all your hard work!