Could H.R. 392 pass? Where does it stand in the legislative process?

The “Fairness for High Skilled Immigrants Act of 2017” (H.R. 392 in the House of Representatives & S. 281 in the Senate) has been added via amendment to the House appropriations bill for the Department of Homeland Security (DHS). Neither the House nor the Senate homeland security appropriation bill has passed the full chamber, and the Senate version does not include language that would eliminate per-country limits for employment-based immigration. If the House provision is included in the final version of the appropriation bill, it could pass each chamber and ultimately be sent to Donald Trump for signature. It remains in play whether this will happen and the legislation will ultimately pass into law.

Who will be impacted?

All nationals of countries other than India, China, Mexico, and the Philippines who seek to gain permanent residency through the EB-1, EB-2, or EB-3 categories will face increased wait times that will be measured in years but likely less than a decade. Individuals under the EB-1 category will likely experience the shortest wait times which are projected at approximately three years, whereas second and third preference categories will probably experience a longer wait time. However, those impacted by the Muslim Ban and subjected to single-entry visas would be kept inside the country while their family is kept out, which will effectively prevent them from seeing their family during this period.

What impact will this proposed legislation have on Iranians and other nationalities impacted by the Muslim Ban?

These changes will eliminate per-country limits for employment-based immigration which means the wait time to transition to a green card will increase by years. This is because eliminating per-country limits will benefit larger countries with a greater number of citizens working in the U.S. who are currently subject to a significant backlog. However, any policy change that extends the wait time for permanent residency will particularly impact Iranians and other nationalities impacted by the Muslim Ban since many find themselves on single-entry visas and their family members are banned from visiting.

Could speaking out against H.R. 392 be used against a non-citizen impacted by the Muslim Ban?

We are aware that some groups have sought to intimidate Iranians and others with threats of false accusations of visa fraud based on the accusation that Iranians on nonimmigrant visas are demonstrating an intent to remain in the U.S. by speaking against H.R. 392. We cannot offer legal advice on this issue, however, we can assure individuals that they should not be intimidated by these threats. Student visas (F/J) are nonimmigrant visas and require a nonimmigrant intent, whereas H-1B visas are dual intent visas. However, people, including visa holders, are able to criticize an unfair policy, and mere criticism does not demonstrate a preexisting intent to use a nonimmigrant visa to remain in the U.S. We are disturbed that some groups are seeking to intimidate our community with veiled threats. Criticisms of H.R. 392 should focus on the policy itself rather than any particular case or circumstances.  If you have a specific legal question then please contact an immigration attorney.

What corporations have supported and/or lobbied for H.R. 392?

These companies include Amazon, Deloitte LLP, Equifax Inc., Hewlett Packard Enterprise, IBM Corp., Microsoft Corp., Salesforce.com and Texas Instruments among others. However, the bills will likely negatively affect many of their own employees, including those targeted by the Muslim ban.

How exactly does H.R. 392 change current immigration policy and why do some groups support it?

The current policy is that no one country can account for more than 7% of visas leading to a green card in any given year. This policy has kept wait times for smaller countries that naturally fall below that 7% threshold short and it assures that our immigrant pool remains diverse. However, it has also created a backlog of decades for large countries such as India. Republican lawmakers have routinely blocked efforts to expand immigration altogether even though U.S. corporations become increasingly reliant on high-skilled foreign employees, especially in the STEM fields. Consequently, some major corporations that rely on employees from larger countries and nationals from those countries have pushed to do away with the per-country limits. But this will produce the unintended and harsh consequence of forcing victims of the Muslim Ban to choose between remaining in the U.S. or seeing their family.

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