Prior to the government shutdown, it seemed that the Fairness for High-Skilled Immigrants Act might pass as an amendment to the spending package with strong bipartisan support. But that was not to be. Now members of the U.S. House and Senate, led by Representative Zoe Lofgren (D-CA) and Senator Kamala Harris (D-CA), have again introduced the bill in the 116th Congress.

The bill would eliminate the per-country caps and therefore speed up the processing of green cards specifically for Indian and Chinese foreign nationals who have faced extremely long waits in the past. In addition to having their processes expedited, such foreign nationals would also benefit because:

  • They and their employers would not have to worry about renewing H-1B visas over and over again in an atmosphere that has become more hostile to H-1B visas;
  • Spouses would be able to obtain work authorization based upon the filing of the green card applications and find relief from the Trump Administration’s plan to eliminate H-4 EADs; and
  • Children of these beneficiaries would not face so frequently the prospect of “ageing-out” before their parents can apply for green cards for them as well.

High tech companies are particularly supportive of this new legislation because it will make it easier for them to recruit foreign workers – many of whom are from India.

But there would be a downside to the proposed changes. Foreign nationals who are not from India or China would have to face longer waits than they have in past. It has been estimated that the average wait time will equalize at about seven years. Consequently, it would be virtually impossible for any foreign national to receive a green card without first having an H-1B visa. This could make recruiting foreign talent from countries other than India and China more difficult.  Among the concerns:

  • The healthcare industry is concerned because foreign nurses, generally not from India or China, are not eligible for H-1B visas and have to get green cards before they can work in the U.S.
  • Potential employees who are not from India or China who are locked out of the H-1B lottery will no longer have the green card option immediately available.
  • Individuals who are not from India or China will have to face more H-1B renewal applications.
  • Without green cards, individuals from travel ban countries will have to deal with a waiver system that has not been very viable.

The legislation gives with one hand but, unfortunately, takes with the other.

Jackson Lewis will provide updates as the bill moves through the legislative process.

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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.