HR 3012 Developments – Sen. Grassley Proposed Increased H-1B Enforcement In Exchange of Removing Per-Country Green Card Limits

Our office closely monitors developments here in Washington, DC on the proposal to lift the per-country limitations on immigrant visas (green cards).    Throughout the past couple of weeks, there have been significant developments on this proposal and we wanted to update our clients and readers.

H.R. 3012 Background

H.R. 3012, the Fairness for High-Skilled Immigrants Act was introduced in September 22, 2011 by Rep. Chaffetz (R-UT) and its goal is to eliminate the employment-based per-country cap entirely by fiscal year 2015 and to raise the family-sponsored per-country cap from 7% to 15%.    If enacted into law, this Act would directly benefit the very high number of highly-skilled applicants for immigrant visa from countries such as India and allow them to obtain an approval much earlier (we are talking many years).

The current law places a limit so that immigrants from a country can obtain no more than 7% of the 140,000 employment-based immigrant visas (or green cards) issued annually.   That cap applies equally to all countries, regardless of the country’s population and creates an imbalance and backlogs for larger countries such as India and China.

Currently, with the per country caps, individuals from countries that produce a lot of high skilled immigrants, like India and China, have to wait much longer than similarly-skilled immigrants from the rest of the world.  There are just more engineers, for example, from India than Iceland.  When fiscal year 2013 begins on October 1, 2012, it is expected that Second Preference employment based immigrants for highly skilled workers with advanced degrees will have green cards available for those from India or China whose employers started the petitioning process 5 years ago (2007), whereas advanced degree workers from the rest of the world will have green card status current and available for cases started in 2012 (meaning that immigrants from some countries are waiting five times as long as other similarly situated workers).

As proposed, by removing the per-country caps, all employment-based green card holders will be selected so that individuals with similar skill sets will wait a similar period of time.    This will result some countries’ (India and China) nationals to wait significantly shorter period of time (1-2 years for EB-2, down from 5-7 years) while some other countries’ nationals (rest of the world) may need to wait longer (1-2 years, up from almost no wait now).

H.R. 3012 Was Blocked in the Senate by Senator Grassley in Late 2011

After H.R. 3012 passed the U.S. House of Representatives, it moved on to the U.S. Senate.   There, in late 2011, Senator Grassley (R-Iowa) placed a hold on the legislation, as passed by the House, citing concerns about misuse of the guest workers program and requiring certain protections for U.S. workers.   Under Senate rules, because of Senator Grassley’s “hold”, the legislative proposal and the momentum behind it stalled.

Senator Grassley Reportedly Close to a Deal — Increased H-1B Program Audits and Enforcement in Exchange of Removing Per-Country Limits

Over the past couple of weeks, it has been widely rumored that Senator Grassley has removed the hold on H.R. 3012.  This is not true.   Instead, Senator Grassley is reportedly close to a deal which would add extra level of audits and enforcement actions as part of the H-1B program in exchange of removing the per-country limits for immigrant visas.   As of right now, there is a draft proposal of Senator Grassley’s added H-1B enforcement requirements, but no action in Congress on them.   We will certainly provide updates as soon as they are available.

Senator Grassley’s H-1B Enforcement Amendments

It is worth analyzing what kind of H-1B program protections Senator Grassley seeks in exchange.     The text of the proposed amendment — in a barely-readable legalese — is here.   Simply put, Senator Grassley wants to add the following additional enforcement mechanisms to the H-1B program:

1. LCA Review Expanded. The Grassley amendment adds a review process based on clear indicators of fraud or misrepresentation of a material fact, in addition to the current LCA review process (which focuses on completeness and obvious inaccuracies).  As of right now, it is not clear if the review for “clear indicators” is limited to the attestation elements under the statute (§212(n)(1)(A)-(D), wages, strike, benefits and notice) or what a “clear indicator” of fraud or misrepresentation may be.
2. Investigation Triggers Expanded.   Currently, there are restrictions on when DOL can commence an investigation on an H-1B employer.   These restrictions are proposed to be removed by the Grassley amendment.
3. Time Period for Investigations Expanded.    Investigations that are not complaint-driven through the process for private sector LCA complaints will no longer have to be completed within 60 days under the Grassley amendment. No time period is identified as the outer limit for when the government must complete its investigation.
4. Added Compliance Surveys.   The Grassley amendment adds grant of authority to DOL to conduct a compliance survey of any employer who has hired an H-1B worker.
5. Annual Compliance Audits.   The Grassley amendment also adds grant of authority to DOL to conduct annual audit of any H-1B employer.   Furthermore, such annual audits are mandatory for all H-1B dependent employers.

Conclusion

H.R. 3012 and the proposed changes, if enacted into law, would affect many employment-based immigration beneficiaries.    Not only certain green card processing times would change (decrease for some, increase for others), but also many (or all) H-1B employers would face additional scrutiny as a result of the Grassley amendments.    It is very important to stress that neither H.R. 3012 nor the Grassley amendments are law yet — they are simply a proposal which has to be voted, in identical form, by both the U.S. House of Representatives and the U.S. Senate, before being signed into law by the President.

We will continue to monitor developments on this legislation and provide updates.    Please do not hesitate to contact us if we can be of any assistance or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.