By Randy Johnson and Dawn Lurie

Seyfarth Synopsis: On July 10, 2019, the U.S. House of Representatives passed H.R. 1044 – the “Fairness for High-Skilled Immigrants Act of 2019,” on the Suspension Calendar[1] with a bipartisan vote of 365-65. The legislation, originally introduced by Rep. Zoe Lofgren (D-CA), would eliminate the existing “per-country cap” for employment-based immigrants while also increasing the per-country cap on family-based immigrant visas.

The current employment-based system for immigrant visas (i.e. “green cards”) is based on “per-country caps” which set a cap, or quota, per-country at 7% of the total amount of employment-based green cards issued annually by the United States.[2] As one employer-based coalition put it, “[t]his means that India and China, which account for over 40% of the world’s population are allowed the same number of visas as Greenland, a country that accounts for 0.001% of the world’s population.”  For more information on the operation of the per-country caps, see the Congressional Research Service’s December 2018 analysis here.

As evident in the arguments made by those advocating for change, the existing system creates huge backlogs for immigrants originating from countries for which there are high numbers of pending green card petitions. In essence, the argument is this adversely affects companies that employ high skilled workers; a majority of these workers are from China and India, are working in the U.S. on H-1B petitions and have applied for permanent residency. Their wait for permanent residency can be decades-long; this fact could deter high-skilled workers from coming to work in the U.S. in the first place.

H.R. 1044 seeks to amend the existing system. The legislation provides certain transition provisions for the EB-2, EB-3 and EB-5 visa categories. Protections are included to ensure that every visa allocated during FY 2020, FY 2021 and FY 2022 are used for the EB-2 and EB-3 categories; extending the same provision to EB-5 would ensure a smoother transition under the legislation.

The official summary of the legislation notes: “The bill also establishes transition rules for employment-based visas from FY2020 – FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country.” The bill also increases the per-country numerical limitation for family-based immigration from 7% to 15%.

In a world where discussions on immigration policy are often typified by partisan bickering and lack of common ground, the broad bipartisan support for H.R. 1044 is telling; it indicates the merit of the underlying legislation while also reminding us that, on occasion, the Congress can step up to the plate and find a solution to a problem. That said, there various groups that are not supportive of H.R. 1044, claiming there is an inherent advantage to certain groups including the high tech industry, real estate developers involved in the EB-5 immigrant investor visa program, and affluent nationals from India and China.

Similar legislation, S. 386, is pending in the Senate but was recently blocked by Sen. Rand Paul (R-KY) who wants to amend the bill with an accommodation for EB-3 nurses. Sen. Mike Lee (R-UT) and Sen. Charles Grassley (R-IA) are supporting changes to the legislation that could adversely affect the business community including language to increase the Department of Labor’s oversight and enforcement of the H-1B visa program

Whether the House and Senate bills will eventually be reconciled and worked out in conference, passing final legislation and sending it to the President’s desk for enactment, remains to be seen. We will monitor the developments and will keep you posted.


[1] The Suspension Calendar is a unique procedure in the House during which the normal rules of legislating are suspended, debate is limited to 20 minutes for each party, amendments from the floor are prohibited, and a bill needs the approval of 2/3 of those voting; the procedure is generally reserved for bills for which there is broad support among the House members

[2] See, https://www.uscis.gov/tools/glossary/country-limit