Alert: View AILA’s Coronavirus (COVID-19) Resource Center

Featured Issue: Legislation Impacting the Per-Country Numerical Limitation

Current State of Play (August 5, 2020)

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. Hotlining is a legislative process which entails passing a bill without a voice or recorded vote, but by unanimous consent. It appears that there are no holds on this most recent version of S. 386, therefore, the bill may pass today on unanimous consent.

Even if this bill passes in the Senate, this cannot become law until it 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 in order to come to an agreement.

AILA is reviewing the most recent revisions to S. 386 to determine if these changes impact AILA’s position on S. 386.

Latest S.386 Bill Text
(AILA Members Only)
  Chart Summarizing Key changes to S. 386
(AILA Members Only)

March 30, 2020

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.

Latest S.386 Bill Text
(AILA Members Only)
  Current State of Play (March 2020)
(AILA Members Only)

AILA's Position Statement   Why AILA Has Concerns About New Provisions in S. 386 and Supports the Relief Act

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.

Talking Points for AILA
Members on the RELIEF Act
(AILA Members Only)

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 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.

Governmental Resources

  • Congressional Research Service: The Employment-Based Immigration Backlog - March 26, 2020
    • The analysis projects similar outcomes for all three employment-based categories: Indian, and to a lesser extent Chinese, nationals in the backlog would experience shorter wait times under S. 386 compared with current law. The bill would eliminate current EB1, EB2, and EB3 backlogs in 3, 17, and 7 years, respectively, with modest differences by country of origin. Subsequently, new prospective immigrants would receive green cards on a first-come, first-served basis with equal wait times within each category, regardless of origin country. By FY2030, EB1, EB2, and EB3 petition holders could expect to wait 7, 37, and 11 years, respectively.
  • Congressional Research Service: Permanent Employment-Based Immigration and the Per-Country Ceiling - December 21, 2018
    • Disclaimer: This report was published in December 2018 before H.R. 1044 was introduced. The report, therefore, fails to take into consideration several key features of H.R. 1044, including the "do no harm" provision for employment-based immigrants.
  • Congressional Research Service: Numerical Limits on Permanent Employment-Based Immigration: Analysis of the Per-Country Ceiling - July 28, 2016

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.

Latest Developments on Senate Legislative Efforts

December 16, 2019

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:

  • Change the effective date of the bill if enacted;
  • Permit individuals with approved Form I-140 petitions to file for adjustment of status before an immigrant visa number is available and allow for continued work authorization and travel permission;
  • Create a set-aside for Rest of the World new arrivals, and
  • Prohibit any employer that employs 50 or more employees in the U.S. and more than 50% of their U.S. workforce is either in H-1B or L-1 status from hiring more H-1B workers.

For more information, please see this one page summary.

AILA will continue to provide updates regarding any additional action on this amendment.

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.

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.