This week in an extremely rare bipartisan action on immigration reform, the United States House of Representatives overwhelmingly passed H.R. 1044, the“Fairness for High-Skilled Immigrants Act of 2019.”
As drafted, H.R. 1044 would remove country caps on all employment-based Green Card categories and raise country caps to 15% of worldwide levels on family-based categories. In an effort to allay some concerns of passing decades-long processing times to all prospective immigrants overnight, H.R. 1044 would also enact three years of transition rules -- specifically, visa set asides -- for next three fiscal years to individuals from countries other than the top two in the EB-2, EB-3, and EB-5 categories. Finally, H.R. 1044 provides a so-called “do no harm” provision that will prevent delays for beneficiaries with approved visa petitions as of the date of enactment.Those with pending petitions would not be protected.
Currently, H.R. 1044 is virtually certain to not pass the Senate in its current form because that body is considering a similar companion bill, S. 386. The Senate version of the reform includes varying provisions including heightened scrutiny upon H-1B visas and no transition rules for the EB-5 category. If S.386 is passed the two bills would likely go to a conference committee to resolve technical differences.
Proponents heralded H.R. 1044’s passage while critics argued that its effects were not fully considered by lawmakers. Because our firm represents some clients who would be aided by the Bill if enacted in its current form, and others who would be harmed, we do not take a public position of support or opposition.We also cannot opine, with any true degree of certainty, whether country cap removal legislation will ever be enacted into law.
Our clients should remain cautious that this reform could significantly accelerate up or delay their immigration timelines. This legislation is especially beneficial for natives of India, who currently face extraordinarily long employer-sponsored Green Card backlogs. In the EB-5 context, the mainland China backlog would also greatly benefit. But because no visa numbers would be increasing – nor derivative counting removed – natives of the present “rest of the world” allocations in each category would be likely to have significantly longer wait times.
That being said, notwithstanding the overwhelming bipartisan support for H.R. 1044’s provisions, there are currently many reasons for pessimism that S. 386 or similar legislation will pass the Senate or be signed into law by the Trump White House:
- There are “holds” on S. 386. Senator Rand Paul (R-KY), among others, have stalled S. 386 from going to the Senate floor. With active opposition to the Senate Bill as drafted, it is presently not clear whether it will ever receive a vote.
- It is not clear whether Senate leadership supports country cap removal.Senate Majority Leader Mitch McConnell (R-KY) has embraced the self-described role of being the “Grim Reaper” regarding legislation that passes the House, frustrating most attempts at immigration reform. Without McConnell’s personal support and desire to make S. 386 a priority, efforts towards a brining about a Senate vote could be in vain.
- The Administration appears to oppose both bills. In an historically extraordinary move that has become more typical of the Trumpian era, the Department of Homeland Security has contacted Republican lawmakers in a semi-public manner and voiced their opposition to both Congressional bills. Congress’ passage of country cap removal could therefore trigger a rare veto by President Trump, even if endorsed by Republican lawmakers.
- Conservative influencers oppose reform. These include right-leaning organizations seeking to curtail immigration and even Fox News personality Sean Hannity, who is known to closely advise the President on policy.