The “Fairness for ‘High-Skilled’ Immigrants Act of 2019″ (H.R. 1044) Will Destroy Employment-Based Immigration to the United States

Executive Summary:

The “Fairness for High-Skilled Immigrants Act of 2019” H.R. 1044, S. 386, has unintended consequences that are contrary to the intent of the legislators.
While this bill attempts to make the employment-based green card process fair by treating applicants from all countries equally by removing the annual per-country cap of 7%, the result is:
● An immediate stoppage in green card issuance for an estimated seven years for all other countries that are not India and China.
● Changed incentives that will result in increased labor supply from India and China and decreased labor supply from everywhere else. This is likely to lead to another bottleneck in a few years, because it does not increase the total number of visas available annually.
● Only foreign workers who are eligible for the few categories of “dual intent” nonimmigrant visas will be eligible to work for their U.S. employers on a temporary basis while their applications are pending – which will start at an estimated 7 years on the first day that this bill takes effect (and as set out above, is likely to grow longer). Not all will be get renewals that will cover the wait.
● No H-1B nonimmigrants waiting for their green cards will be able to do three-year extensions past the initial six year maximum time limit.
● Instead, all H-1B nonimmigrants will have to renew their H-1B temporary visas annually after six years, increasing expense, burden and uncertainty for the H-1B workers and their employers, while dramatically increasing the workload of the already overburdened U.S. Citizenship and Immigration Services.
● Increasing costs, burdens and uncertainty for employers may lead employers to rotate out H-1B employees rather than sponsoring anyone for a green card at all.
● S. 386 further: removes EB-5s from the bill, which limits the benefit to Chinese applicants; and the Grassley amendment will completely change H-1B visa processing by adding a new recruitment requirement.

The problem:

The current system of employment-based (“EB”) immigration has an annual cap on the total number of EB visas issued (“green cards”), as well as a 7% per country cap. In other words, India and China each get the same total number of immigrant visas every year as Andorra, Luxembourg, and the Maldives.

The high number of applications for Indian and Chinese workers, and the practice of counting the applicant’s accompanying spouse and children against the quota for workers (not mandated anywhere in law or regulation), have caused lengthy backlogs. For China and India, the current
backlogs are decades long. As a result, Indian and Chinese H-1B holders become tied for years to their US employers to maintain immigration status while they await EB green cards. The problem is real, and it is serious.

The “Fairness for High-Skilled Immigrants Act of 2019” (H.R. 1044, S. 386):
This bill eliminates the 7% per country cap for employment-based immigrant visas. Because the green card are issued in the order for which they were applied, and hundreds of thousands of Indian and Chinese citizens are already “in line,” they would be processed ahead of any new
applicants for years. “Green cards” would be unavailable for years to anyone else.

Effects of H.R. 1044 on ALL Employment-Based applicants:

● In an attempt to alleviate backlogs for China and India, the bill redistributes the backlog for those two countries, and creates immediate backlogs for all other countries. U.S. employers who require foreign workers to meet the gaps in the US market will have to wait many years for their sponsored employees to receive green cards.
● Employees who are ineligible for dual-intent visas will be forced to wait for years in the home country, US employers can’t utilize them in the meantime.
● Virtually ends extraordinary ability immigration for athletes, including MLB and NBA players, whose entire careers span less than the wait time this bill will create.
● Children accompanying parents on work visas who reach age 21 during the backlogs will become ineligible for a green card as part of the parent’s process. This will add to backlogs in the family-based immigrant visas and other categories, and lead to unnecessary family separations.

Effects of H.R. 1044 on H-1B employers:

● Ends three-year extensions of H-1B nonimmigrants under the American Competitiveness in the 21st Century Act. H-1B’s will need to be extended annually rather than every 3 years after the initial 6 years. The change significantly increases the administrative burden and cost of compliance for all US employers who have already sponsored or want to sponsor any of their foreign workers for green cards.
● Eliminates the employers’ ability to draw employees from non-backlogged countries to meet the shortage of qualified employees in the US market.
● Senator Charles Grassley’s amendment requiring recruitment of U.S. workers for H-1Bs coupled with USCIS’s new “no deference” policy (treating extensions like brand new petitions) will likely lead to many denials for extension of stay even for workers for whom US employers have obtained multiple prior approvals of temporary visas and approval of an immigrant visa petition. This could leave US employers without a means to lawfully
employ nonimmigrant workers to compensate for US labor market shortfalls.

A practical alternative solution

We encourage legislators to consider the proposals offered in the “Believe Act of 2019” (S.2091) introduced by Senator Rand Paul. This bill eliminates the backlog for citizens of India and China without the unintended consequence of creating years-long backlogs for all applicants.

The following immigration attorneys authored this document and are available to provide clarifications and comments:

Ksenia A. Maiorova
Maiorova Law Group, PLLC
6965 Piazza Grande Ave., Suite 207
Orlando, FL 32835
Phone: 407-705-3345

Amy Maldonado
Law Office of Amy Maldonado
333 Albert Ave., Suite 610
East Lansing, MI 48823
Phone: 517-803-2870

Karin Wolman
Law Offices of Karin Wolman
48 Wall St., 11th Floor
New York, NY 10005
Phone: 212-918-4940

Earlier this week, the House of Representatives passed the “Fairness for High-Skilled Immigrants Act of 2019,” which could effectively end the path to green card applications under EB-1A for professional athletes. The bill, HR 1044, proposes a redistribution of the annual quota for employment-based green cards, including EB-1A green cards for individuals with extraordinary ability in Athletics.

Immediate multi-year backlogs for EB-1A green cards

HR 1044, which is now under review in the Senate Judiciary Committee, attempts to solve the problem of a years-long backlog in the allocation of employment-based green cards to citizens of India and China. This backlog is created by the relationship between an annual numeric cap on the number of employment-based green cards that can be issued each year and the high number of applications for these green cards by citizens of India and China.

However, the proposed solution will have the perhaps inadvertent, but nonetheless immediate, effect of creating a backlog in green card applications made by nationals of all other countries. Some analysts predict that the backlog could be as long as 7 or more years.

Forced O and P applications for those who meet the criteria for EB-1A

The immediate consequence of the new backlog would be that athletes who already meet the criteria for EB-1A green cards would be unable to apply for green cards, without waiting in line for years. Given the need to train and compete in the US in the meantime, athletes would need to obtain a “bridge” status, such as a P-1 or O-1 visa.

Unlike the EB-1A green card, which permits self-petitioning, P-1 and O-1 visas are required to be submitted by an employer or a petitioner. Additionally, these visas restrict the athlete’s authorized employment to specific competitions, games, or events outlined in his or her petition, and do not provide employment authorization for the athlete’s accompanying spouse.

These visas also bind the athlete to the petitioner and changes in petitioner, the terms of the athlete’s employment and other details regarding the athlete’s work in the US often require the submission of an amended or a new petition. Athletes from countries like Brazil, with short-term validity for O-1 and P-1 visas, will either be stuck in the United States or will have to reapply for a visa stamp at a US Consulate abroad virtually every time they travel outside the US.

What was once a one-step process for highly-qualified athletes could turn into a multi-step and multi-year affair, as the EB-1A qualified athlete struggles to maintain interim status while waiting for the green card.

Maximum Periods on O and P may be insufficient

Further complicating the situation of extraordinary ability athletes who would be affected by this legislation, O-1’s and P-1’s are subject to limitations on the maximum admission period, of 3 years and 5 years, respectively. If the EB-1A backlog lasts longer than the validity of the athlete’s O-1 or P-1, extensions will need to be secured to meet the gap. In some cases, multiple extensions of the O-1 or P-1 nonimmigrant visa will be required.

Multi-year backlogs could mean no green card for short athletic careers

Multi-year backlogs can also entirely cut off the possibility of a green card for certain athletes. An EB-1A green card requires that the athlete be coming to the US to “continue work in the field of endeavor.” For athletes, the field of endeavor is narrowly construed as competing in his sport. Unless the EB-1A was approved for coaching, an athlete who retired as a competitive athlete and took up coaching while waiting for the backlog to resolve will be ineligible to receive a green card under that category.

This presents a problem for MLB and NBA players, as well as other sports where the average duration of a professional career is relatively short. Athletes could attain the accolades required for an extraordinary ability green card during their competitive career, only to be retired and ineligible by the time they can apply for adjustment of status.

EB-1A green card eligible athletes should obtain legal advice

The bill includes provisions that may protect athletes who filed their EB-1A applications before the law goes into effect. However, it is unclear whether these protections will be included in the final version of the legislation, if it passes. Athletes whose accomplishments make them eligible for EB-1A should consult with an experienced sports immigration lawyer to develop an individualized legal strategy.

This post was co-authored by our Managing Partner, Ksenia Maiorova, whose sports visa practice is primarily focused on Track & Field, and by Amy Maldonado, whose sports immigration practice focuses on MLB athletes and coaches.