A potentially significant bill eliminating the per-country caps on employment-based visas may become law.

H.R. 392, Fairness for High-Skilled Immigrants Act, first introduced in 2017, had 300 co-sponsors. It is now championed by outgoing Representative Kevin Yoder (R-Kan.) as an amendment to the spending package that Congress likely will pass this year.

The bill means to equalize wait times and eliminate the green card backlog mainly for Indian foreign nationals and, to a lesser extent, Chinese nationals, in about a decade. At the same time, of course, wait times for petitioners and applicants from almost all other countries would increase.

How Would This Be Implemented?

If the amendment passes, most immigrant visas would be allocated to those from India and China until an equilibrium is reached. Recognizing that shutting out everyone else would not be feasible, the bill sets out a three-year transition period during which a certain percentage of immigrant visas would be reserved for those who are not from India or China: 15% in the first year, 10% in the second year, and 10% in the third year. Assuming that the annual number of employment-based immigrant visas remains the same (140,000), the projected average wait time eventually will even out at approximately seven years.

What Does This Mean?

If the bill passes, it will change the settled expectations of many foreign nationals and the companies that employ them. Examples include the following:

  • What has been common for Indian and Chinese foreign nationals will apply to most employment-based green card applicants. Almost anyone who wants to apply for an employment-based green card will have to be in H-1B status to remain in the country, working while waiting for a green card. This likely will put even more pressure on the H-1B lottery system.
  • Individuals from countries other than India and China who are not eligible for H-1Bs (such as some L-1B employees) may no longer be able to remain in the United States long enough to get green cards.
  • While the elimination of the backlog would be good for technology companies that employ many Indian foreign nationals, other industries may suffer.
  • The healthcare industry, for example, is concerned because foreign nurses have to get green cards to work since they are not eligible for H-1B status. Hospitals have relied on the fact that most of the foreign nurses are from countries not subject to long backlogs. The same concern may apply regarding foreign physicians who can be locked out by the H-1B lottery.
  • Others, such as the National Iranian American Counsel, oppose the bill because without green cards, Iranian nationals will continue to be subject to President Donald Trump’s travel ban.
  • Recruiting and retaining foreign nationals from countries other than India and China might be harder.

Jackson Lewis will continue to report any new developments. If you have questions about how these changes will affect your workforce or your overall immigration strategy, please reach out to your Jackson Lewis attorney.

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Photo of Forrest G. Read IV Forrest G. Read IV

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice…

Forrest Read is a Principal in the Raleigh, North Carolina, office of Jackson Lewis P.C. He has extensive experience in both business immigration law and employment law and has particular focus in legal issues in graduate medical education (GME).

Mr. Read’s immigration practice focuses on assisting employers in obtaining employment-based nonimmigrant visas (e.g., H-1B, L, O, TN) for foreign national employees and work-related immigrant (green card) visas, including PERM Labor Certifications, and advising employers on compliance with U.S. immigration laws and regulations. He has broad experience in advising large, mid-size and small employers on their various immigration needs and developing strategies to help them navigate through complex immigration issues. He also has particular experience in counseling employers in the health care industry and addressing immigration-related issues that arise for their broad range of health care professional employees (including advising on and obtaining employment authorization for medical residents and fellows and obtaining J-1 visa waivers for foreign national physicians completing their medical training in the United States). His immigration practice also includes defending employers in connection with Department of Labor H-1B and H-2B investigations.

Mr. Read’s employment law experience includes representing management, particularly academic medical centers in the GME context, in a wide array of workplace disputes and litigation before federal and state courts and administrative agencies, including matters related to discrimination, retaliation, harassment, disability, family and medical leave, various wage and hour issues, contracts, and intentional torts. He advises academic medical centers on the interplay between applicable academic law and employment law and the ramifications of what are divergent legal requirements and standards. Mr. Read also provides counsel with respect to the legal impact of competency standards for residents and trainees in GME, including situations involving discipline, remediation, and dismissal. He provides advice and guidance in the peer review process, including provision of verification and assessment of training in response to third party inquiries.

As a member of the Firm’s Corporate Diversity Counseling group, Mr. Read also has experience in providing assessments and making recommendations to corporate and institutional clients with respect to diversity and inclusion policies and initiatives, conducting related internal investigations, and shaping, developing and enforcing effective policies and initiatives to ensure consistency with client values and in furtherance of business goals and objectives.