Comment: Prospects for Country Quotas

The Senate has passed Senate Bill 386 by unanimous consent. S.386 is the companion bill to H.R. 1044 that the House already passed 365-65 back in 2019. These bills have provisions that fundamentally transform key aspects of the US immigration system, which include:

  • Elimination of per country quotas

  • Bypassing the visa bulletin for employment based categories by creating a new procedure for getting EAD and AP without having one's date current

There are many other provisions of the bills including nurses and healthcare workers' immigration benefits. The above are just highly simplified highlights. Indians who have been waiting in decades-long EB2 and EB3 lines are now elated and everyone else in those lines are now panicking. Is elation or panic justified? Let us look at what needs to happen for this bill to become law:

Given that there are differences between S.386 and HR1044, one of three things must happen:

  • There is a conference report and both the Senate and House vote again on the new version coming out of the conference

  • The House fully adopts the language of the Senate bill 386 and passes it

  • The language of S386/HR1044 gets rolled into another must-pass bill

Congress has only 8 days left in the current session that ends on December 11, and constitutionally the term of the 116th House expires on January 3rd, 2021. There is no time to negotiate a conference report followed by two separate floor votes. As for the House to pass Senate bill 386 as is, finding floor time for a stand alone vote is going to be almost impossible given the tight floor schedule for three critical bills in front of Congress which dwarf S.386 in legislative priority. The only hope for S.386/HR1044 is to roll their language into one of the three bills that Congress will have to consider shortly, as follows:

  • The 2021 appropriations bill OR a continuing resolution. All attention is focused on this bill as funding the government is the primary responsibility of Congress. This massive 2,000+ page bill includes many perennially thorny issues such as the border wall, ICE detention beds and veteran healthcare

  • The National Defense Authorization Act that President Trump has threatened to veto unless it includes Section 230 repeal. With our soldiers on the ground in many foreign lands, Congress cannot leave before passing the NDAA

  • Covid infections and deaths are at record numbers. The 5th wave of general covid relief including assistance to states, PPP, unemployment funding, etc is currently being hotly debated

Just to get these three critical pieces of legislation through Congress will likely need both chambers to remain in session till the brink of Christmas.

If Congress succeeds in passing an appropriations bill, H.R. 1044 and S386 provisions could be rolled into the appropriations bill--such rolling in of immigration provisions into appropriations has happened many times before. However, immigration provisions are very unlikely to get rolled into the NDAA, covid relief or a continuing resolution. Given the above, we think there is not more than 5% chance of the passage of S386/HR104 language by the 116th Congress. It appears that the Senate passed this bill as a statement--as a costless show--fully realizing that there is little chance of it becoming law--without bearing the cost of its consequences while being able to boast about being for the bill. To summarize, Senate passage of S386 appears to be much ado about nothing.


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Focus: Early Bird: 2021 PERM Update Webinars

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Joel Stewart (Discussion Leader) practices exclusively in the area of immigration law. He specialized in Romance and Slavic Linguistics before receiving a J.D. from the University of Connecticut School of Law, and is fluent in Portuguese, Spanish, French, and Russian. He is Past President of the South Florida Chapter of the American Immigration Lawyers Association (AILA) and is a nationally recognized authority on employment-based immigration matters as well as a popular speaker at for national and local bar associations throughout the United States. Mr. Stewart is the editor of The Perm Book, the definitive authority on the subject of PERM processing of labor certifications, and has been writing the BALCA Case Summaries since 1987. Mr. Stewart is also General Counsel to the Brazilian Consulate in Miami and Honorary Consul of Brazil in Florida.

Matthew Morse
Matt Morse has been practicing employment-based immigration law for over 20 years. He has experience with many areas of Green Card processing, including PERM labor applications, immigrant visa petitions, and Adjustment of Status applications. He has experience with Naturalization issues, and family-based immigration matters, and has extensive experience with many nonimmigrant visa categories, including the B, E, F, H, K, L, O, R, and TN categories, as well as consular processing matters. He has strong knowledge of federal immigration statutes and regulations. As a Partner at Fakhoury Global Immigration, Matt's experience includes Extraordinary Ability Alien cases, National Interest Waiver cases, Outstanding Professor/Researcher cases, Multi-National Manager and Executive cases, as well as health care worker immigration cases. Matt earned his Bachelor of Arts degree in Political Science at the University of Michigan, Ann Arbor, and his J.D. from the Thomas M. Cooley Law School. He is a member of the American Immigration Lawyers Association and the Michigan Bar Association.

Harry Sheinfeld
Harry Sheinfeldis a PERM Consultant and a Former DOL Solicitor.

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