Recent Proposed Legislation
July 26, 2019
Earlier this month, the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044). The bill proposes to eliminate the per-country limit for all employment-based immigrants and increase the per-country limit for all family-sponsored immigrants from 7 percent to 15 percent. Ostensibly, if enacted as is, H.R. 1044 would help reduce the backlog of green cards for Indian nationals over the next several years but likely lead to a significant increase in waiting time for all new applicants.
H.R. 1044 includes a “do no harm” provision, which provides that beneficiaries of an employment-based immigrant visa petition (I-140) approved before the bill’s enactment shall receive a visa no later than they otherwise would have received such visa had this bill not been enacted. The “do no harm” provision does not apply to pending employment-based petitions or any family-sponsored petitions.
The bill has moved to the Senate, where a companion bill (S. 386) is still in committee. The Senate’s bill, similar in many areas to the House bill, also includes provisions relating to the H-1B visa program:
- Internet Posting: Employers filing petitions on behalf of workers who have not already been counted against the H-1B cap will be required to post information about the job for which an H-1B worker is sought on a newly established searchable DOL website for at least 30 days before submitting an LCA.
- LCA Fee: Requires an administrative fee to be paid at the time of filing an LCA to cover the average paperwork processing costs and other administrative costs
- W-2 Reporting: Provides DOL with the authority to obtain an employer’s W-2 wage and tax statements with respect to the H-1B workers it employs
- Eliminates B-1 in lieu of H-1
- Whistleblower Protections: Strengthens whistleblower protections for employees who report violations of the LCA process by employers
- IInformation Sharing: Increases information sharing between USCIS and DOL regarding employer H-1B non-compliance
- LCA Review: Expands DOL authority to review LCAs to include scrutiny of clear indicators of fraud or misrepresentation of material facts
- Audits and investigations: Permits DOL to conduct annual compliance audits of H-1B employers, but if no willful failure is found, no further annual compliance audit shall be conducted for a period of at least 4 years
- Increases the penalties for LCA violations
- Expands DOL’s investigative authority for LCA violation
S. 386 faces a great deal of opposition within the Senate, so it’s not clear whether it will be forwarded for a vote.
In addition, Senator Rand Paul (R-KY) has introduced the Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act, S. 2091, which would
- Eliminate the per-country numerical limitation for employment-based immigrants
- Increase the number of employment-based green cards available each year
- Exempt certain health care workers and certain spouses and children from counting against the worldwide limitation on the number of employment-based visas
- Allow spouses and children of E, H, and L visa holders to apply for employment authorization
Now the Senate must debate and decide whether either (or another) bill will be voted on. If a bill does pass in the Senate, a conference committee would then need to reconcile the Senate bill with the House bill, posing challenges to passing of legislation.
In addition, even if a compromise bill were to pass the House and the Senate conference commitee, it would still need to be signed into law by the President, which could present further challenges to new legislation.
Weaver Schlenger will continue to follow proposed immigration legislation and post updates relevant to our clients here.
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