Fairness for High-Skilled Immigrants Act (H.R. 3012)

Interest is high and discussion animated among immigrant groups and within the immigrant community regarding a proposed change in immigration law referred to as H.R. Bill 3012, the Fairness for High-Skilled Immigrants Act. At the Murthy Law Firm, we have seen online discussions on this topic and received questions regarding the bill. This update on the status of H.R. 3012 is provided to help MurthyDotCom and MurthyBulletin readers better understand the potential changes in the law contained in this bill. Of course, there is no guarantee that the bill will ever become the law, and even if it does, it has severe limitations, as we explain.

Background: Proposed Changes to Country Quotas

As discussed in our October 21, 2011 NewsBrief, Immigration Bill Would Eliminate Per-Country Quota in EB & Increase FB Quotas, H.R. 3012 seeks to eliminate the country-of-origin based eligibility limits for employment-based (EB) visa numbers. If passed, this bill would significantly change the system of allocating EB visa numbers, and eliminate the country-of-chargeability-based disparity in EB backlogs.

Essentially, if this bill were to pass, the cutoff date in the EB visa categories would reflect a single date in each of the EB categories. That is, EB1 would have a single cutoff date (or reflect as current) for all countries. Rather than having cutoff dates for India and China, EB2 would have a single cutoff date for the entire world. The same single cutoff date system would hold true for EB3, EB4, and EB5, as well. It is likely each EB category would have a different date, but there would be only one cutoff date within an EB category.

Latest Developments on H.R. 3012

As of this writing, the most recent significant action on H.R. 3012 occurred on November 29, 2011. On that date, the bill passed in the U.S. House of Representatives (House) with overwhelming support. On November 30, 2011, the bill was placed with the Senate for consideration.

How a Bill Becomes a Law

Taking proposed legislation from a bill to becoming law is a long process, full of debate, revision, and voting by the U.S. House of Representatives (House) and the U.S. Senate. For more explanation, please review The Legislative Process – How a Bill Becomes a Law on MurthyDotCom.

The Library of Congress WebSite posts daily news regarding the Senate and House bills, for tracking the status of legislation. It also explains more fully how a bill becomes the law and the specific action that is taken in the two houses of Congress. Given the possibility of a change in immigration law, it is important to understand that any such change follows a detailed and often lengthy process. Laws do not simply change without warning. The unexpected alterations in immigration often interpreted as changes in the law, are usually shifts in USCIS procedures or policy guidance memos, but not actual changes in the law. H.R. 3012 can be tracked using the Library of Congress WebSite.

U.S. Congress on Break for Holidays

The U.S. Senate and the U.S. House of Representatives have holiday breaks that affect when a bill will be put on the docket. The House will adjourn close to December 8th for 2011. The Senate will also adjourn for the year in early December. Thus, it is unlikely there will be action on this bill in the immediate future.

Effects of the Bill

Foreign nationals who are suffering though the EB3 and EB2 India and China visa number backlogs must be realistic regarding the possibility of the passage of H.R. 3012 and any potential benefits, even if this bill becomes law. It appears there are those who are under the mistaken impression that a law resulting from H.R. 3012 would somehow make all the cutoff dates “current.”

This legislation does not provide additional visa numbers, which would be needed to fully address the EB backlogs. It simply puts everyone in each category into the same queue. There is no certainty as to how the visa bulletin cutoff date numbers would move forward if this bill were to be enacted. The net result, however, would have to be something that averages the most and least favorable cutoff dates in any particular category. For example, if the EB3 category for all chargeability areas except those listed has a cutoff date in 2006 and EB3 India has a cutoff date in 2002, the legislation would result in an EB3 cutoff date better than the 2002 date, but not as favorable as the 2006 date. This, in fact, makes this bill less favorable for individuals born in all countries where the priority dates are ahead – countries other than India and China.

Senate Introduces Identical Bill

Senator Mike Lee from Utah introduced an identical bill in the Senate. The “Fairness for High-Skilled Immigrants Act,” S. 1857, was introduced on November 10, 2011. It has been referred to the Senate Committee on the Judiciary.

Conclusion

The Murthy Law Firm continues to track this legislation for the benefit of MurthyDotCom and MurthyBulletin readers. There should not be any surprises or overnight changes as a result of this legislative proposal, as the process for a bill to become law is elaborate and possible to track.

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