The bill that has been unveiled is one comprehensive piece of proposed legislation, but a strategy to try and pass it on a piecemeal basis is on the cards, to ensure a better chance of success.
The biggest takeaway is that it eliminates the 7% per-country employment-based green card caps. TOI had earlier covered a study done by CATO Institute, a Washington based think-tank, which showed that the employment-based green card backlog from India (EB-2 and EB-3 skilled category) had reached 7.41 lakh in April 2020, with an expected wait time of 84 years.
Mitch Wexler, partner at Fragomen, a global immigration law firm provides an overview, “The bill also increases to 170,000 (from 140,000) the annual limit for employment-based green cards. It aims to reduce the backlogs, which would be partly achieved by exempting PhD graduates working in the science, from science, technology, engineering and mathematics (STEM) fields from the quota. It also has provisions to recapture unused green cards from past years. Lastly, it also exempts from the quota the beneficiaries of approved applications, who are waiting for more than ten years in the green card process.”
“The bill is not perfect, though, and does little to accommodate the demand for scarce H-1B visas each year. Nor does it create a start-up visa for entrepreneurs. One provision authorizes the prioritization of distribution of scarce H-1B visas based on wages offered by their employers and also authorizes similar prioritization based on wages for other non-immigrant worker categories,” states Cyrus D Mehta, a New York-based immigration attorney.
However, Mehta adds, “Even if the H-1B visa is not reformed, hopefully, the ability to get a green card more quickly under the new law may compensate for the imperfect H-1B visa program that may remain in place.”
In general, the employment-based immigrant and non-immigrant provisions of the bill are very positive and could bring much-needed relief and greater certainty to the process for many individuals and their sponsors states Nasscom.
Referring to the provisions that empower the Secretaries of Homeland Security and Labour to develop regulations to establish procedures for prioritizing certain visa applications based on the wages offered by employers, Nasscom adds that if implemented incorrectly these could cause damage. “For example, it could preclude – lower-cost regions in the US from being able to obtain the skilled workers they need (such as doctors and nurses); universities and companies developing vaccines from getting the researchers and medical staff they need; and prevent start-ups and certain sectors of the tech industry vital to economic growth from getting the talent they need as well.”
Mehta refers to some ingenious provisions in the bill. “The bill authorises the extension of non-immigrant stays for certain categories of visa holders. For instance, an F-1 student in practical training who is sponsored for a green card can remain in F-1 status and need transit to an H-1B status. He or she can get a green card directly.”