July 16, 2019

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Congress Considers Removing Country Caps for Employment-Based Immigrant Visas and Proposes Changes to H-1B Visa Program

On July 10, 2019, the U.S. House of Representatives passed H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019, by a vote of 365 to 65. The bill is intended to reduce lengthy immigrant visa (green card) wait times by eliminating per-country caps for employment-based green cards. In addition, senators have reportedly reached an agreement on a version of a companion bill (S. 386) in the U.S. Senate that presently includes an amendment imposing tighter restrictions on recruitment and creating new reporting requirements for H-1B visa sponsors. If enacted, the legislation would take effect on September 30, 2019, and apply to fiscal year 2020.

The following is a summary of the key changes proposed by the House bill:

Immigrant Visa Process

  • Elimination of per-country caps for employment-based visas. This is significant because under the Immigration and Nationality Act, employment-based green cards are currently limited to 140,000 per fiscal year. From that number, only 7 percent, or 9,800 visas, can be awarded to foreign nationals from any one country regardless of the size of the country or the demand. Under the proposed bill, immigrant visas would be issued on a first-come, first-served basis, regardless of nationality. While the elimination of the cap is intended to reduce wait times for individuals from countries with the highest volume of green card recipients, it may result in an increase in the waiting period for other foreign nationals.

  • Transition period for EB-2 and EB-3 visa categories. The bill proposes a three-year transition period during which a certain percentage of EB-2 and EB-3 visas would be reserved for applicants from countries other than the two largest recipients for that visa category (currently India and China). For fiscal year 2020, 15 percent would be reserved. In fiscal years 2021 and 2022, the percentage of reserved visas would shrink to 10 percent. Additionally, no more than 85 percent of the unreserved visas may be awarded to any one country.

In addition to mirroring the elimination of the per-country caps for employment-based visas, the Senate bill includes an amendment that would affect the H-1B process. The following is an overview of such proposed changes:

H-1B Process

  • Department of Labor (DOL) posting requirement. Employers would be required to post information about the jobs being offered to H-1B candidates on the DOL’s website for at least 30 days prior to filing a labor condition application (LCA). The public posting would require each job’s description, occupational classification, minimum qualifications, salary, benefits, work location, and application process.

  • Restrictions on recruitment efforts. An employer would not be able to include language in recruitment ads suggesting that a position is available only to H-1B workers or that the employer prefers or would prioritize H-1B workers. The employer would be prohibited from primarily recruiting individuals for the role who would be H-1B workers.

  • Expanded review of LCAs by the DOL. The proposed legislation would expand the DOL’s review of LCAs from merely looking to ensure completeness or spot obvious inaccuracies to looking for evidence of fraud or misrepresentations of material fact.

  • Information sharing. S. Citizenship and Immigration Services (USCIS) would be required to notify the DOL if it uncovers information in an H-1B petition that suggests that an employer is not complying with the H-1B program’s requirements.

  • Expanded DOL compliance audits. The bill would mandate an annual compliance audit for employers with more than 100 full-time employees if more than 15 percent of the employees are in H-1B status. In addition, the DOL would have the authority to audit any employer that employs H-1B workers, regardless of whether the employer met the 100-employee or 15 percent threshold.

  • Protections for whistleblowers. The bill would provide protections for whistleblowers who disclose information or cooperate in any investigation regarding a potential violation of an H-1B requirement.

  • Elimination of B-1 in lieu of H-1B. Employers would no longer have the option of bringing employees to the United States in B-1 business visitor status to work on a short-term basis.

As the legislation evolves in the Senate, further changes may occur. In addition, it is not clear when, or if, the Senate bill will be put up for a vote, though recent movement on the bill indicates that a vote may take place in the near future.

© 2019, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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About this Author

Tieranny L. Cutler Ogletree immigration lawyer
Associate

Tieranny is an associate in the Raleigh office of Ogletree Deakins focusing on employment-based immigration law.  Prior to joining Ogletree Deakins, Tieranny focused on business immigration matters in several major cities, including London, Miami, and the greater DC area.  Tieranny brings to the team U.S. and U.K. business immigration experience gained through high volume positions with international firms and Fortune 100 clients.

Tieranny has also worked with matters falling outside the scope of business immigration, including complex inadmissibility waivers,...

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Associate

Marissa Cwik is an Associate in the Raleigh office of Ogletree Deakins. Marissa assists corporate clients with hiring and retaining foreign national workers.  She has expertise with nonimmigrant filings presented to the U.S. Department of State, U.S. Department of Homeland Security, and the U.S. Department of Labor, including E, H, J-1, L, O, P, and TN nonimmigrant petitions.  She is also experienced in supporting corporate clients with sponsoring foreign national employees for permanent residency, including first preference EB-1 petitions for persons of extraordinary ability, outstanding professors and researchers, and multinational managers or executives; second preference EB-2 petitions requiring the labor certification application process, exceptional ability, and national interest waiver petitions; and third preference EB-3 sponsorship.

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Associate

Andrea is an associate attorney in the Atlanta office of Ogletree Deakins. She focuses her practice on employment-based immigration.

Andrea completed her undergraduate studies at the University of California, Berkeley and received her Juris Doctor from the University of North Carolina School of Law. During her law school career, Andrea gained experience working in the Immigration and Human Rights Clinic, preparing non-immigrant U-visa petitions for victims of violent crimes, and interning in the Health and Public Assistance Section of the North Carolina Department of Justice. She...

919-789-3187
Melissa Manna, Ogletree Deakins Law Firm, Raleigh, Immigration Practice Group Writer
Immigration Practice Group Writer

Melissa Manna is an Immigration Practice Group Writer. Her primary focus is writing and editing legal articles relating to immigration for the firm’s online and print publications, websites, and newsletters.

Prior to joining Ogletree Deakins, Melissa spent 9 years as in-house counsel at TowerCo, one of the largest independent wireless tower companies in the U.S., representing the company in all aspects of commercial real estate. During that time she managed due diligence, advised and implemented risk management solutions, and closed transactions...

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