On Nov 30 2011 by William A. Stock

House Passes Bill Reallocating Immigrant Visas, India and China EB-2 Would Benefit Most

News reports have summarized the passage by the House of Representatives of HR 3012, the Fairness for High-Skilled Immigrants Act, by 389 votes for to 15 votes against.  The bill now goes to the Senate, where supporters had hoped the bipartisan support in the House would help obtain quick passage.

What Problem is HR 3012 Addressing?

Under current law, no more than 7% of the visas issued per year in any one immigrant visa category can go to natives of any one country.  On the employment-based immigrant visa side, natives of India and China face longer waits than natives of other countries, because natives of those countries send more high-skilled immigrants to the US than any other country.  On the family-based immigrant visa side, natives of Mexico and the Philippines face longer waits than natives of other countries, because there are more immigrants and US citizens with family ties to those countries than there are to other countries.

Quota backlogs in the employment-based system range from “immediately available” for the highest skilled immigrants (persons of “extraordinary ability,” “outstanding researchers” and “multinational managers and executives”) to an estimated 6-10 years for skilled workers and professionals from most  countries.  Because of the per-country limits, however, natives of India and China only have “immediately available” immigrant visas if they are in those highest skilled classes.  If they are advanced degree professionals (such as doctors, or more senior managers, or mid-career professionals), natives of India and China face quota delays of at least 4-7 years.  If they are other professionals or skilled workers, however, their waits could be 30, 40 or even 70 years (based on the current quota available per year per country divided by the number of pending cases for natives of those countries).  This bill aims to even out the disparity between India and China, on the one hand, and the rest of the world, on the other, when it comes to allocation of these visas per year.

Quota backlogs on the family side are similarly backlogged, with natives of Mexico and the Philippines taking quite a bit longer than natives of other countries for their relatives to be able to enter.

What would HR 3012 do?

HR 3012, as passed by the House, would not raise the number of legal immigrants allowed to enter the United States, which is a significant reason it was able to garner such broad support in the House.  It would, however, adjust the number of legal immigrants within the employment-based and family-based caps from each country.

HR 3012 would not add any new visas to address the quota backlogs for approved legal immigrants awaiting the availability of immigrant visas each year.  Rather, it would eliminate, over a three year period, the per-country limit in the employment-based system.  The elimination of the per-country limit would gradually make more visas available to natives of India and China, where backlogs in the employment based second preference (advanced degree professionals) would likely fall significantly from 4-7 years (and might even become “immediately available”) and backlogs in the employment based third preference (skilled workers and professionals) would likely fall to 10-12 years.

Because HR 3012 does not add any new visas per year, however, the reductions in quota delays for Indian and Chinese nationals may come at the expense of increased delays for natives of all other countries.  It is even possible that backlogs in the employment-based second preference will slowly develop for natives of all countries as the law takes effect over its three year implementation.

On the family side, the changes made by HR 3012 are not as dramatic – they only raise the per-country limit from 7% to 15%.  Therefore, natives of Mexico and the Philippines will have somewhat shorter waits, while natives of other countries will not be too adversely affected.

Will HR 3012 Become Law?

HR 3012, or a similar bill, still has to pass the US Senate.  Early indications are that quick passage may not be possible due to the objections of some Senators, meaning that HR 3012 may never become law.  Likewise, if the Senate passes a bill similar to HR 3012, but not identical, a committee made up of House and Senate members would have to meet and agree on a common version, which would again have to pass both houses.  At this point, therefore, it is still rather speculative as to whether HR 3012 will become law.

How Will HR 3012 Affect My Pending Case?

Both because HR 3012 may not pass the Senate, and because it will gradually be phased in over three years, our current estimation is that even if it became law, it would not affect most employment based second preference (EB-2) pending at the moment.  For EB-3 cases currently in process, if HR 3012 passes, it would likely drop the total delay for Indian and Chinese dramatically, while raising the delay for natives of other countries by a relatively smaller amount.  Unfortunately, even the State Department office responsible for allocation of the visas cannot provide any more detailed prediction than that.

We will continue to monitor developments and update our clients as further details become available.