U.S. Senate Passes the Fairness for High-Skilled Immigrants Act (S.386)

Written by Taher Kameli & Chathan Vemuri

 

EB-5 and other professional green card applicants can finally breathe a sigh of relief while going through the application process. Last week, on December 2, 2020, the U.S. Senate unanimously passed bill S.386, known as the Fairness for High-Skilled Immigrants Act.[1] If approved by the President (whoever that will be), it would be of immense benefit to green card applicants of different categories, for it would remove the “caps on the number of immigrants who can be approved for permanent residency permits (“green cards”)” and help clear the extensive backlog of green card applications.[2] In particular, it would eliminate the per-country cap limit on EB-5 green card application approvals.[3]

 

Under the current green card applicant procedures, there is a 7% cap for employment-based green cards, with those applying past the cap having to wait until approval and admission of applicants resume.[4] This has resulted in creating a massive backlog of green card applications for high-demand professional green card applicants, especially those from India and China.[5] This especially affects the Big Tech industry as they rely heavily on these types of green card applicants from these countries to work in their industry but have to deal with an overwhelming green card backlog that makes it effectively impossible for them to come.[6]

 

The new bill, if enacted, promises several changes that would streamline the application process for employment-based green cards. First and foremost, it would eliminate the 7% country cap for employment green cards, benefitting skilled workers from countries such as India and China who currently are most negatively affected by the backlog.[7] It would increase the per-country cap on family-based green cards from 7% to 15% available a year.[8] It would also reserve a percentage of EB-2 (Employment-Based Second Category) and EB-3 (Employment-Based Third Category) visas for individuals not from India and China, the two countries with the largest number of recipients of such visas.[9] This would give professionals from other countries a chance to apply for these visas. With regards to unreserved visas, at most 85% will be allotted to immigrants from a particular country.[10] Both of these rules would prevent any one country from dominating the applications for these visas.[11] It would remove effective national origin discrimination for applicants of these visas.[12] These are but some of the changes being promised by this new bill, should it become law.

 

A particularly notable change to employment visa applications found in this bill concerns the EB-5 visa and immigrant investor program. As with the other employment-based visa programs, the EB-5 visa has a 7% per-country cap that results in lengthy backlogs of EB-5 applications from immigrant investors from high demand countries.[13] After the cap is passed, unless if there are leftover visas, no more can be allocated.[14] If there are, they go to the longest waiting applicants regardless of country of origin, contributing to the overwhelming backlog that plagues the employment-visa application process.[15] However, with the possible enactment of S.386, these investor applicants would be removed from the backlogs, particularly the Chinese as they have been waiting for their visas the longest, as well as people from India and other countries.[16] This would help make EB-5 applications much easier and more successful for applicants.

 

Despite this promising news, challenges remain. An earlier bill on the same issue was passed by the House of Representatives and was very different from S.386.[17] Both S.386 and this earlier bill need to be reconciled and made consistent before a final bill is passed into law.[18] The bill also has issues. Specifically, it provides protections for American workers that badly impact companies most benefitted by these visa programs as their workforce comes from their applicant pool.[19] For example, in the nine years after the bill is hypothetically implemented, up to “70% of the green cards can go to H-1B visa holders and their dependents.”[20] After that, this reservation would go down to 50% and it would not apply to the medical profession or those who have national interest waivers.[21] Furthermore, the bill bans 50:50 companies (those with 50% of their staff on H-1B visas or those with 50 employees and more in the US) from bringing in more H-1B visa holder employees into the country.[22] This would negatively affect IT companies who rely on these visa holders for their workforce, although “they can still file H-1B extension and change of employer requests” to get around this.[23]

 

These concerns notwithstanding, the passage of S.386 is a significant milestone in ending the burdensome backlogs of employment-based green card applications and removing those restrictions that privilege some nationalities over others. One can only that hope negotiations between proponents of it and the House bill will be able to come to an agreement that preserves what S.386 seeks to accomplish.

 

 

Please fill out the form below or give us a call at +1 (312)-233-1000 if you have any questions about S.386 and what it can mean for applicants for the EB-5 immigrant investor visa.

[1] Lahoud, Raymond G. Long-Awaited Green Card Bill S.386 Clears Senate Approval, 10 Nat’l Law Rev. (Dec. 8, 2020) available at https://www.natlawreview.com/article/long-awaited-green-card-bill-s386-clears-senate-approval

[2] Id.

[3] Lithgow, Clare, S.386 Bill Would Eliminate the EB-5 Per-Country Cap for Green Cards,

[4] Lahoud, Raymond G. Long-Awaited Green Card Bill S.386 Clears Senate Approval, 10 Nat’l Law Rev. (Dec. 8, 2020) available at https://www.natlawreview.com/article/long-awaited-green-card-bill-s386-clears-senate-approval

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Kably, Lubna, US Senate Passes S.386 Bill, Eliminates Country Cap for Employment-Based Green Cards, Times of India (Dec. 3, 2020, 19:34 IST) available at https://timesofindia.indiatimes.com/business/international-business/us-congress-passes-bill-to-delist-deceitful-chinese-companies-from-american-stock-markets/articleshow/79545085.cms

[12] Id.

[13] Lithgow, Clare, S.386 Bill Would Eliminate the EB-5 Per-Country Cap for Green Cards, EB-5 Daily (Dec. 8, 2020) available at https://www.eb5daily.com/2020/12/s-386-bill-would-eliminate-the-eb-5-per-country-cap-for-green-cards/

[14] Id.

[15] Id.

[16] Id.

[17] [17] Kably, Lubna, US Senate Passes S.386 Bill, Eliminates Country Cap for Employment-Based Green Cards, Times of India (Dec. 3, 2020, 19:34 IST) available at https://timesofindia.indiatimes.com/business/international-business/us-congress-passes-bill-to-delist-deceitful-chinese-companies-from-american-stock-markets/articleshow/79545085.cms

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.