[Article written by Benjamin Hu, Esq. as Of Counsel to the Ganey Law Group]
The U.S. Senate has passed S.386, the “Fairness for High Skilled Immigrants Act of 2019”, in a move to eliminate all country-based limits for employment immigrant visas and to significantly relax the existing country-based limits for family immigrant visas. The U.S. House had previously passed H.R.1044 in 2019-07 with similar parameters. Now, the House and Senate versions of the bill must be reconciled before the final text of the bill S.386 goes to the White House for ratification.
Although the bill allows for approximately two years of transition period before going into full effect, its proposed changes to the employment-based immigrant visa quotas could have profound consequences for the waiting lists for employment green cards.
Under current immigration adjudication, each foreign applicant at the Adjustment of Status stage (AOS or I-485) or the consular processing for Immigrant Visa stage (DS-260), the applicant’s nation of birth determines whether they are subject to a waiting list. If a waiting list for their green card category exists, then they are then placed in a queue depending on their “priority date” – usually the date of first filing their immigrant petition with the USCIS or labor certification with the DOL. Under current rules, no single country may exceed 7% of all available immigrant visas unless some countries have failed to use up their quota, in which case the unused visas may be reapportioned to the high-demand nations. This restriction means that foreigners born in high-demand countries must wait in line while foreigners from lower-demand countries may proceed to DS-260 or AOS with no waiting list.
Below diagram: excerpt from 2020-12 U.S. Department of State Visa Bulletin, showing per-country waiting lists for those countries that had reached their visa quotas
A. Final Action Dates For Employment-Based Preference Cases
On the chart below, the listing of the date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i. e., numbers are authorized for issuance to all qualified applicants; and “U” means unauthorized, i. e. numbers are not authorized for issuance. (NOTE: Numbers are authorized for issuance only for applicants whose priority date is earlier than the final action listed above.)
|Employment-based||All Chargeability Areas Except Those Listed||China Mainland born||El Salvador, Guatemela, Honduras||India||Mexico||Philippines||Vietnam|
|Certain Religious Workers||C||C||01FEB18||C||22NOV18||C||C|
|5th Non-Regional Center (C5 and T5)||C||15AUG15||C||C||C||C||01SEP17|
|5th Regional Center (I5 and R5)||C||15AUG15||C||C||C||C||01SEP17|
In the above 2020-12 Visa Bulletin table, the EB-5 category for both Regional Center and Non-Regional Center visas shows that only two countries have a waiting list – mainland China and Vietnam. The EB-2 and EB-3 categories feature waiting lists for mainland China and India only.
Under current rules, a foreigner born outside of these waitlisted countries would effectively bypass the waiting list entirely and go to the front of the queue when processing immigrant visas via DS-260 or a green card via AOS. Waitlist-subject foreigners would not be able to claim their immigrant visa or green card until the waiting list date has fallen after their own priority date.
The proposed changes from S.386 would likely reduce waiting lists for those countries that already have them, but could drastically affect countries with historically low application rates, by imposing a waiting list mostly brought about by high demand from other nations. The S.368 amended text does introduce a transition period for EB-2 and EB-3 visas to reduce the impact for individuals not from China and India but do not provide any such transition implementation period for EB-5 visas.
EB-5 industry analysts currently estimate an EB-5 pipeline of 80,000+ visa applicants, meaning that eight to nine years of processing are required to clear the existing backlog (at a rate of 10,000 visas per year). S.386 ‘s changes would mean that all EB-5 applicants would be processed, irrespective of the birth nation – in strict accordance with their priority dates. The earliest Chinese-born petitioners from 2015 would be cleared first, then the Vietnamese petitioners from 2017, and then all petitioners from around the world thereafter in order of earliest filing date. Under this regimen, a UK-born EB-5 petitioner could go from “no waitlist” to an eight-or-nine year waiting list overnight, depending on S.386 ‘s timing of enforcement (currently set by the bill text as “the first day of the second fiscal year beginning after the date of enactment of this Act“).
The changes to family-based immigrant visas will relax the restrictions from a per-nation cap of 7% to 15%, likely reducing waiting times for Mexico and the Philippines, with additional minor relief for family cases from mainland China and India, while increasing waiting times for the rest of the world.