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AILA Doc. No. 19080632 | Dated December 23, 2020
AILA has been a long time, ardent supporter of the elimination of the per-country limitations for employment-based immigrants because individuals should become permanent residents based on the skills they bring to the United States and not their nationality. We believe that Congress must take action to provide fair redress to individuals who have been stuck in the backlogs for decades, without adversely impacting others.
AILA will continue to champion, both legislatively and administratively, the principles outlined in the RELIEF Act to ensure equitable and fair redress to individuals and their families while waiting for an immigrant visa to become available. These principles outline steps to bring real reform to our immigrant visa system, including exempting spouses and minor children of primary applicants from the immigrant visa quotas, enabling individuals to get the benefits of filing adjustment of status application earlier, increasing the number of green cards over the next five years, protecting minor children from aging out, and eliminating the per country caps.
At this time, there is no active legislation in Congress seeking to eliminate per country limitations. Although different versions of the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044 and S. 386) passed the House and Senate in July 2019 and December 2020, respectively, this legislation has failed because the differences were not reconciled prior to the end of the 116th Session of Congress.
To be considered again, this legislation would have to be reintroduced in the new Congress, passed by the House and Senate, any differences reconciled, and signed into law by the President.
In President-Elect Biden’s immigration plan, he has committed to working with Congress to address unacceptably long backlogs, by eliminating the limits on employment-based visas by country. This is a part of greater reforms to the immigration system.
AILA will continue to monitor legislative developments and update this page.
On July 10, 2019, the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044) by a vote of 365 to 65. A modified version of H.R. 1044 (S. 386) was passed by unanimous consent in the Senate on December 2, 2020. AILA is providing the below summary of the major provisions in the two different versions of the bill, which will need to be reconciled and signed by the President before it can become law.
AILA provides talking points for members on opposition to the rushed passage of the Fairness for High Skilled Immigrants Act of 2020 H.R. 1044, as amended by S. 386.
On December 2, 2020, the Senate passed The Fairness for High-Skilled Immigrants Act (S. 386/H.R. 1044) which included xenophobic and exclusionary language targeting individuals of Chinese origin. It appears that Congress wants to try to pass this legislation as soon as possible by attaching it to must-pass government funding bills before the end of the year.
A summary of the latest version of the Fairness for High-Skilled Immigrants Act is available here and the provisions are also described below. However, as currently drafted, Section 9 would ban many Chinese nationals from becoming U.S. lawful permanent residents and citizens, falsely equating their place of birth with the ideology of China’s leadership. This provision undermines the spirit and purpose of a bill that was originally intended to ensure that people are granted visas based on their skills and not their country of origin. As such, AILA opposes Section 9 of S. 386/H.R. 1044, as passed by the Senate, and has joined forces with other immigration advocates to urge Congress to strip such xenophobic provisions out of the Fairness for High-Skilled Immigrants Act.
AILA has been a long-time, ardent supporter of the elimination of per country quotas for employment-based immigrants to ensure that people are granted visas based on their skills and not their country of origin, but also is cognizant of the adverse impact some of the provisions of S.386/H.R. 1044 will have on many individuals from countries that are not currently experiencing immigrant visa backlogs. Because the bill will be helpful to some groups but disadvantage others, AILA has maintained a neutral position on the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044/S. 386), except when amendments were being discussed that would strip out important protections for individuals and their families who had been stuck in the green card backlog. When such provisions were removed, AILA resumed its position of neutrality. However, AILA cannot maintain its neutrality unless these latest changes, passed by the Senate, targeting Chinese nationals, are removed from the bill.
AILA supports the RELIEF Act and the principles it stands for to bring real reform to our immigrant visa system, including exempting spouses and minor children of primary applicants from the immigrant visa quotas, increasing the number of green cards over the next five years, protecting minor children from aging out, and eliminating the per country caps. AILA continues to encourage Congress to include these provisions in the Fairness for High-Skilled Immigrants Act to truly create a fair and equitable immigration system. Congress may take final action on this bill before it adjourns on December 18. We urge AILA members to contact their members of Congress to urge support for the provisions of the RELIEF Act and to oppose passage of S.386/H.R.1044 in its current form.
On December 2, 2020, Senator Mike Lee (R-UT) and Rick Scott (R-FL) came to an agreement on additional changes to S. 386 by adding two provisions to the version of the Fairness for High-Skilled Immigrants Act of 2020 that Senator Dick Durbin (D-IL) sought to pass in August. This version was hotlined, a legislative process which entails passing a bill without a voice or recorded vote, but by unanimous consent, and passed without objection.
The latest version of the bill text that was passed by the Senate is available below:
The amendments proposed by Senators Lee and Scott are in Sections 8 and 9 of the bill.
These changes are in addition to those amendments previously introduced by Senator Grassley on H-1B visas, Senator Perdue creating a set aside for Schedule A health care professionals and their family members, and Senator Durbin’s amendments which include a delayed effective date of the bill, transition periods for EB-2 and EB-3 immigrants, early adjustment filing provisions, and an age out protection for children.
It is important to note that this bill cannot become law until it is agreed to by the House and then the President would have to sign the bill into law. The Senate bill is significantly different than the bill that was passed in the House in July 2019, H.R. 1044: Fairness for High-Skilled Immigrants Act of 2019. As such, there will need to be negotiations between the House and Senate to come to an agreement on a final version before it is sent to the President. Moreover, if this is not passed by the end of this Congressional session which is likely to end on December 18, 2020, the bill will need to be reintroduced in the new Congress. Given the number of priorities that the new Congress will be facing, including appropriations, COVID-19 relief, as well as other important immigration issues, it is unclear how the passage of the Fairness for High-Skilled Immigrants Act will be prioritized.
AILA is reviewing the most recent revisions to S. 386 to determine if these changes impact AILA’s position of neutrality on H.R. 1044/S. 386.
Updated 5:45 pm (ET)
This afternoon, Senator Durbin (D-IL) and Senator Lee (R-UT) attempted to move their S. 386 compromise bill on the Senate floor by Unanimous Consent. During the floor discussion, Senator Scott (R-FL) offered an amendment that would create an immigrant visa carve out for certain individuals. After Senator Lee objected to Senator Scott’s amendment, Senator Scott said that he objected to the Unanimous Consent request, which meant that the S. 386 compromise bill would not be considered.
Updated at 1:30 pm (ET)
Today, Senator Dick Durbin (D-IL) is attempting to hotline the most recent version of S. 386, Fairness for High-Skilled Immigrants Act of 2020 in the Senate. Senator Durbin is expected to seek unanimous consent for his own amendment to S. 386, which includes an age out provision for children which would lock their age for Child Status Protection Act (CSPA) purposes to the approval date of the I-140 petition to protect those who may be adversely impacted by a delayed effective date of the early adjustment filing provision. Senator Lee may object and may then seek unanimous consent for the most recent version of S. 386 which contains Senator Lee’s most recent amendments.
AILA urges its members to support the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act (S. 2603/H.R. 5327), and to oppose new changes that are being considered to the Fairness for High-Skilled Immigrants Act of 2019 (S. 386). AILA urges its members to work with Congressional offices to educate them on the harmful amendments being proposed to the current draft of S. 386. AILA had previously chosen to remain neutral on that legislation while supporting the RELIEF Act, however, the most recently circulated draft has removed important provisions, such that neutrality no longer suffices. Read more about AILA’s position here.
AILA’s Board of Governors has voted to endorse the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act (S. 2603). The legislation proposes reforms to the immigration system that AILA has long been on the record of supporting, including exempting spouses and minor children of primary applicants from the immigrant visa quotas, increasing the number of green cards over the next five years, protecting minor children from aging out, and eliminating the per country caps. The House companion version of the RELIEF Act was introduced on December 5, 2019, by Representative Donna Shalala (D-FL). Given the much-needed improvement the legislation would bring to our immigration laws and the unconscionable visa backlog, AILA expresses its continued support for those principles.
The RELIEF Act is one of several pieces of immigration-related legislation being considered by Congress, including provisions to eliminate the per country caps. AILA recognizes the impact of the per-country quotas on nationals of affected countries and supports elimination of per-country caps in combination with visa backlog reduction efforts. However, we recognize the very real practical consequences on both sides of the debate when elimination of per country caps is not paired with backlog reduction provisions. For this reason, AILA maintains a neutral position in regards to the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044/S. 386). AILA has created this dedicated issue page to keep members informed about the status of these legislative proposals, and we will continue to update the page with new information, research, and analysis to help members make informed decisions regarding the legislation.
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.
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 all 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, including the Congressional Research Service Report issued on March 26, 2020, that analyzes the impact of H.R. 1044 and S. 386, as amended, on the EB-1, EB-2, and EB-3 backlog.
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.
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.
Senators Lee (R-UT) and Durbin (D-IL) appear to have reached an agreement to overcome Senator Durbin's objections to S. 386. The amended language of S. 386 contains all provisions in prior versions of S. 386, including the elimination of per country numerical limitations, increase of the per-country limitation for family-sponsored immigration, a do no harm provision for approved immigrant visa petitions, the three year 15/10/10 transition period, an additional 4,400 visas for the shortage occupations for 6 years, and revisions to the H-1B program.
In addition, the agreement between Senators Lee and Durbin would:
For more information, please see this one page summary.
AILA will continue to provide updates regarding any additional action on this amendment.
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.
Senator Dick Durbin (D-IL) introduced the Resolving Extended Limbo for Immigrant Employees and Families (RELIEF) Act. If enacted the RELIEF act would:
See the RELIEF Act bill summary for more information.
AILA will continue to provide updates as they become available.
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:
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.
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