H.R. 3012 Update: Still a Legislative Proposal

Many questions have come to the Murthy Law Firm in response to our NewsBrief, H.R. 3012 Hold Lifted: Proposed Changes to GC Quota System (12.Jul.2012). Readers have been contacting us seeking an update on the status of this legislative proposal. Entitled the Fairness to High-Skilled Immigrants Act, this bill proposes the phased-in elimination of the per-country numerical limits for employment-based (EB) visa numbers and raising the family-based (FB), per-country cap.

The U.S. House of Representatives passed this bill by an overwhelming majority on November 29, 2011. The bill moved to the Senate, where it was placed on hold by Senator Chuck Grassley (R-IA) on November 30, 2011. Senator Grassley lifted his hold on H.R. 3012 on July 11, 2012. Removal of the hold is connected to internal agreements reached on the language of Grassley’s proposed amendment to H.R. 3012, which relates to an expansion of U.S. Department of Labor (DOL) power regarding the H1B program.

No Further Legal Developments on H.R. 3012

Removal of the hold was an important step toward potential passage of H.R. 3012. However, many hurdles must be overcome before this bill can become law and, as of this writing, no further action on the bill has been scheduled.

Grassley’s Amendment to H.R. 3012 on H1B LCA

The amendment proposed by Senator Grassley is unrelated to EB quotas. The amendment involves the H1B program – specifically, the labor condition application (LCA). As explained by Grassley, the amendment contains “language authorizing the Department of Labor to better review labor condition applications and investigate fraud and misrepresentation by employers … [and] a provision allowing the federal government to do annual compliance audits of employers who bring in foreign workers through the H1B visa program.”

DOL’s Power Over LCA and H1B Employers May Increase

The amendment would greatly alter the role of the DOL in reviewing LCAs and investigating violations. Put simply, the DOL currently is allowed to review LCA submissions only for completeness and obvious inaccuracies prior to approval or denial. The amendment would allow the DOL to review submitted LCAs for fraud or misrepresentation and initiate investigations of companies submitting suspect LCAs. The amendment would greatly expand the DOL’s power to proactively initiate investigations of employers for LCA violations, and would mandate annual audits for certain employers.

Bill Similar to H.R. 3012 Not Passed by Senate

For the law to change, the bill would have to pass in the U.S. Senate. The American Immigration Lawyers Association (AILA) has reported the likelihood of unspecified senators to raise objections to the bill. Introduction of still more amendments could further complicate and delay action in the Senate. If the bill should manage to pass in the Senate, it will not be the same version passed by the House.

Conference Committee and President Must Agree

If the Senate passes an amended version of the bill, a conference committee, with membership from both houses of Congress, will be formed to reconcile the differences. In order for any proposed legislation to become law in the United States, both the House and Senate must agree to identical language of the proposed legislation. The bill will die if an agreement cannot be met.

If the conference committee reaches an agreement, it will be memorialized in a conference report. Both the U.S. Senate and U.S. House of Representatives must approve the report, after which the agreed upon bill would be sent to President Obama for his signature. President Obama has previously indicated his support for the legislation.

Conclusion

Absent agreement in the Senate, H.R. 3012 will not pass. No one should depend upon the per-country quotas being eliminated when assessing the immigration options available. Those who face long backlogs in the EB permanent residence process due to per-country quota limits potentially could benefit from changes in those quotas. The apparent trade off for this benefit, however, is an enormous expansion of power for the DOL in terms of LCA review and investigation. Check MurthyDotCom for timely updates on this matter, which potentially could affect many foreign nationals.

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