Tuesday, December 17, 2019

FAIRNESS FOR HIGH SKILLED IMMIGRANTS ACT COULD PASS SOON

The Fairness for High Skilled Immigrants Act has been a hot legislative item all year.  On several occasions, the bill has looked to be set into law, until a last minute Senate hold out has blocked the law’s progress.  One of the final holdouts, Sen. Durbin (D-IL), has just agreed to a compromise with Sen. Mike Lee (R-UT).  Sen. Lee is bill’s lead sponsor.

The bill, including Sen. Durbin’s amendments, would make these changes to Employment-Based Immigration:

Changes to the Green Card Quota and Process
  • Eliminate the per-country visa caps on employment-based workers over a three-year phase in period.  This will speed up processing Indian EB2 and EB3 retrogressed immigrants.
  • Allow all nonimmigrants in the US to file an I-485 Adjustment of Status 270 days (9 months) after the filing of their I-140, Petition for Alien Worker.  This will allow more job flexibility and protect Indian and Chinese H-1B and L-1 workers and their immediate families.  These Adjustment applicants must maintain qualifying employment and the entire family will retain their priority dates even if they would otherwise age-out.  This provides a great relief to long-retrogressed families.
  • There is a 4,400 visa carve-out for Schedule A workers.  As with current law, their immediate family members also take visas at the same time.  This provision will end in 2026.
  • There is also a second carve-out for non-Indian and Chinese nationals who have not worked in the US.  Our sense is that this will largely be used by non-H-1B occupations, such as Registered Nurses.  This provision ends in nine years.

 Changes to the H-1B visa
  • Employers with more than 50% H-1B / L-1 workers would be barred from the H-1B program.
  • H-1B Cap petitions must be posted on an on-line government job board prior to the filing of the H-1B cap petition.
  • Elimination of the B-1 in Lieu of H-1B business visa rule.
  • Additional wage protection for H-1B workers.
  • Additional protections for H-1B whistleblowers. 

Next Steps
Sen. Lee is expected to try to pass the bill in the Senate this week, perhaps as soon as today.  The bill will need to go back to the House of Representatives, where it is expected to pass, perhaps before the end of the year.  After that the President will need to sign the Bill into law, which is expected.

21 comments:

  1. Good day Attorney,what will be the impact to Filipino Nurses?

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  2. Short answer: good/neutral for Filipino nurses. Longer answer: if an when the bill is signed into law.

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  3. good day atty. if the s386 bill shall be approved, what will be the effect of this for EB3 Philippines in the year 2020? will this slow down the movement of the priority dates for the EB 3 category of other countries esp Philippines?

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    1. My sense is that it will speed up priority dates for Phil nurses.

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    2. I believe it will definitely slow down the nurses from the Philippines.

      1. There are a lot of Indian Nurses who has their Nclex. Nothing is written in the provision that all nurses will be from the philippines, and indian nurses are excluded on those 4400. Probably in the beginning it will speed up the process then after that they will suck up all the visas.

      2. I am aware that most of the Physical Therapist falls under EB2, but some like PTA(assistant) can apply for EB3, which again will drain the number of visas. And again its just 4,400 per year for every A schedule worker. Which may include again Indians and Chinese (there are no such provisions that excludes them). Remember again Filipinos now have to compete to the ROW(rest of the world)

      The current limits are better for Filipinos. I am not convinced that it will speed up the priority dates. It may at the beginning, but surely once ROW piles up, you can see the difference.

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    3. thank you for your insight. I do believe that once the bill will be approved it will unfortunately slow down the movement for EB3 Philippines.

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    4. honestly i don't think this bill is fair. especially for Filipino nurses. Why? because if they were allowed under H1b visa a lot of them could have been there. Indian tech workers sucked almost 75% of the H1b visa and now they are complaining. Unlike the Nurses who need to take each and every exam that is required by the americans, Indians from the tech sector does not require that. Yes sure that it is not their fault, its a loop hole that some have been abusing. but it does not take the fact that this bill is disastrous to everyone aside from INDIA!

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    5. I totally agree with you.
      not being biased about Filipino nurses,but, in what way is this bill "FAIR"? if this bill's only prioritizing India and China's backlog, wouldn't this cause a backlog as well to the rest of the countries applying for green card too?

      they should've made a better solution to fix the backlog problem under the H1B category rather than jeopardizing the employment based category which will affect the rest of the countries applying for green card too.

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  4. Good day!

    Yes there will be 4,400 visa carve-out for Schedule A workers but wouldn’t this be bad for
    EB3 Philippine nurses? Since all the 4,400 visas will go to the nurses and PT’s from India and China since they have the biggest backlogs?

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    1. No. There are virtually no nurses from India and China. Eventually I could see Indian nurses being petitioned, but my experience is that there are very few qualified Chinese nurses.

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    2. Sorry Sir but i totally disagree with what you have said

      There are a lot of indian nurses, people like us have seen their domination in the GCC. When i say Domination is like nepotism at its best! please check the number of private hospitals in the UAE. How many of them are indian owned, and how many nurses aside from indians are employed on those hospitals.

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  5. States above

    “There is a 4,400 visa carve-out for Schedule A workers. As with current law, their immediate family members also take visas at the same time. This provision will end in 2026.”

    Will the dependents be counted as part of the 4,400 visas?

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    1. No. Dependents do not count as part of the 4,400.

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    2. I saw this in one article

      No change in counting Dependents of employment based green card application
      USCIS counts each dependent of employment based green card application as a separate green card applicant. There is no change here.

      As per USCIS reports, each immigrant has an average family size of 3 which means that they count 3 green cards for each employment based green card i140 filed by H1B or other such worker.

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  6. This comment has been removed by a blog administrator.

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  7. Good morning Attorney,
    How will this impact Indian Physical Therapist. Will they be considered part of scheduled A category.

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    1. If the bill were ever to become law it would make Indian PTs immediately current or near current.

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  8. Hello atty. My I-140 was approved last November 24, 2019. Then the January VB table B retrogress to January 01, 2019 from current for the Philippines. Will I still be getting fee bill even if my PD is May 28, 2019? Thank you in advance for your reply.

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  9. atty. I need your insight about the H1b. it is mentioned in the amendment made by sen. durbin that a company has to limit their H1b employment to not more than 50%. Would that be bad for everyone since India is taking almost 75% of the h1B visa? I mean if they will all get their green cards, it will sprout new H1b visas for indians again. 1 green card given to an indian means they can hire another h1b Indian. Its like a loop over and over again.

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  10. Good day atty. When is the next session or voting of senators on this particular bill?

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    1. There is nothing scheduled on the bill at this time.

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