June 17, 2022

Workers Wanted: Proposed Legislation to Address Immigration Backlogs

Several bills have been recently proposed in Congress to address some of the challenges employers and employees face in terms of high-skilled immigration. Backlogs in the permanent residence (green card) process and difficulties procuring work visas for professional employees create significant stress and uncertainty for U.S. businesses in a competitive labor market. 

One critical challenge is the significant backlog in the permanent residence process, which continues to grow. There are 140,000 immigrant visas available for employment-based applicants each year. However, these 140,000 visas are subject to a country cap that states no more than seven percent of the 140,000 available immigrant visas may go to immigrants from any one country. This cap does not consider the fact that demand from each country for employment-based visas is not equal. Largely because of the cap, individuals from countries for which demand for employment-based immigrant visas is higher — such as India and China — face extreme backlogs when seeking to become permanent residents in the U.S. These backlogs not only impact individuals and their families, but also impact their employers who are sponsoring them through the permanent residence process. There are currently over one million people affected by this backlog, putting strain on employers who must continue to sponsor and extend the temporary work authorization of individuals who cannot finalize their permanent residence processes due to the delays caused by the backlog. 

Employers may be unwilling to sponsor skilled foreign national workers who want to apply for permanent residence because of the lengthy and expensive process. With this backdrop in mind, members of Congress have proposed the following bills aimed at improving the immigration system, attracting highly skilled workers to American employers, and increasing the supply of talented workers to the market. 

The Jumpstart our Legal Immigration System Act

Introduced to the House of Representatives in April, this bill would recapture 222,000 unused family sponsored visas and 157,000 employment-based visas. The bill also ensures that future visas will not go unused, and instead, if passed, visas would rollover. This bill allows individuals who lack an available visa number, but who are otherwise eligible for permanent residence, to submit an application for permanent residence. Finally, to promote efficiency and reduce the backlog, the bill includes $400 million for U.S. Citizenship and Immigration Services. 

The RELIEF Act 

This bill also seeks to eliminate the seven percent country cap for employment-based immigrant visas and proposes to transition to a first come, first served basis within a three-year period. This bill exempts dependents from counting against the employment-based visa cap, which would essentially double the number of employment-based visas now available for workers. Passage of this bill would also create an additional pool of immigrant visas designed to reduce backlog in the system. 

The Bipartisan Innovation Act

In June 2021, the Senate passed the U.S. Innovation and Competition Act. In February, the U.S. House of Representatives passed the America Competes Act. Both bills were designed to attract highly qualified entrepreneurs and STEM Ph.D.s to immigrate to the United States. However, the two bills had significant differences, and members of the House and Senate recently went to conference to reconcile the two bills into the Bipartisan Innovation Act. Key provisions that will be discussed during reconciliation include exempting STEM Ph.D.s from counting against annual immigrant visa limits, a new “W” visa for entrepreneurial immigrants affiliated with the management of a start-up company, and extra protections for persecuted Uyghurs and individuals from Hong Kong. 

The Preserving Employment Visas Act

Introduced to the House in late 2021, the Preserving Employment Visas Act (the Act) seeks to clear the COVID-related employment visa backlog from 2020. The Act proposes to roll over the tens of thousands of visas not awarded due to COVID. The unused visas will continue to be available until they are issued. Importantly, these visas would not be subject to the seven percent country cap. 

U.S. Citizenship Act of 2021

This bill eliminates per-country caps for employment-based visas, and exempts spouses and children from counting toward the overall employment-based visa caps. Further, anyone who has been waiting to apply for permanent residence for more than 10 years would be eligible to immediately apply and would not count against the annual cap. This bill also expands the annual limit for employment-based visas from 140,000 to 170,000 and makes available all unused employment-based visas from the past 30 years. STEM majors who completed their doctoral degrees in the U.S. would also be exempt from counting against the annual cap. 

The EAGLE Act

The Equal Access to Green Cards for Legal Employment Act (EAGLE Act) focuses on green card reform. The bill proposes to eliminate the seven percent country cap on employment-based immigrant visas and allows some foreign workers who are waiting in the employment-based backlog to obtain lawful permanent resident status if they are in the U.S. on a temporary work visa and have been waiting in the backlog for at least two years with an approved permanent residence application.

Importantly, the bill also imposes stricter requirements on employers seeking H-1B visas. Employers would be required to post public information about the open position on a website the Department of Labor is tasked to create. Employers also may not state the position is only open to H-1B applicants or say that they prefer H-1B applicants in the job posting. Companies with over 50 employees, of which 50% or more are on H-1B visas, may not hire additional H-1B employees. 

Given the inability of Congress to pass legislation impacting employment-based immigration, it is unlikely these proposals will advance through committee and be put up for a vote before the full House and Senate. 

On the other hand, the Biden administration seems intent on addressing employment-based immigration challenges however it can. In February, the administration praised the House passage of the America COMPETES Act, a bill that would, among other measures, create new temporary and permanent visas for startup entrepreneurs and would exempt STEM Ph.D. graduates from numerical limits on immigrant visas. House and Senate negotiators are trying to reconcile the House- and Senate-passed versions to send a final bill to the White House. Further to the administration’s efforts to streamline employment-based immigration, this week, the U.S. Department of Agriculture announced an upcoming pilot program to address labor shortages in the food and agriculture spaces, in part by expanding the H-2A agricultural visa program. The pilot, which will be rolled out later this year to address the 2023 growing season, will be done in partnership with the United Farm Workers of American and through the input of other stakeholders. 

* Donnavon Fischer, a summer associate, assisted in the preparation of this article.
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