Examination of EB-2 Visa Demand Vis-a-Vis H.R. 3012 (Part 1)

By Alan Lee, Esq.

This is the first of three parts of the article which was published in the most respected immigration publication, Interpreter Releases, on March 5, 2012.  The first part is the background of H.R. 3012, the bill to open the entire worldwide advanced degree (EB-2) quota to natives of China and India so that they do not have to wait so long to immigrate.  It also asks the question of whether the bill, which now appears destined to be weighed down with unfavorable parts, is necessary in light of the EB-2 forward movement of almost four years since March 2011.

An astonishing statistic was recently released by the State Department Visa Office in the report, "Monthly Determination of Employment Preference Cutoff Dates," containing data as of February 7, 2012, that in the determination of the March 2012 employment preference cutoff dates, it had received total EB-2 (second employment preference for members of the professions holding advanced degrees or persons of exceptional ability) visa demand of 335 from consular posts and CIS offices, of which 50 numbers were for China born, 165 for India born, and 120 for those of other countries.  The paucity of numbers requested and the movement forward of the EB-2 category by the Visa Office by almost four years of visa chart time within one year of calendar time (EB-2 date of March 11, 2011, visa bulletin was July 8, 2006 for China born and May 8, 2006 for India born, and March 2012 chart showed both China and India advancing in lockstep from January 1, 2010 to May 1, 2010) for China and India begs the question of how much EB-2 visa demand is actually out there with U.S.C.I.S. and the consular posts of the State Department.  Attached to this important question is the necessity of H.R. 3012, the Fairness for High-Skilled Immigrants Act of 2011, as applied to EB-2 immigrants from China and India.

The legislation would eliminate the per country quota on immigrant visas in the employment based categories after a phasing in period. The bill would also increase the per country limit on family based preferences from 7% to 15% over a four year period. Present law limits any one country to 7% of the worldwide quota in any category. The principal argument for the bill is that many natives of China and India who have been educated and gained Master's and Ph.D.'s from U.S. colleges and universities have been discouraged by the long waiting time to immigrate to the States and instead of benefiting America, have returned to their native countries with their U.S. graduate diplomas and used their talents into making their countries direct competitors of the United States.  A subsidiary argument is that the EB-2 category is underutilized by the other countries of the world.  The EB-2 counterarguments are that F-1 or J-1 students and scholars are supposed to leave the United States after their period of schooling or training and that eliminating the 7% limit and allowing China and India natives access to the entire worldwide quota would backlog the category for other countries since visa numbers are awarded according to the earliest chronological age of a petition. 

If future EB-2 visa demand remains low and the category continues its rapid advance for the two countries, there would be much less reason for many of its current backers to continue advocating passage. The March movement from January 1, 2010 to May 1, 2010, has had a calming effect on many EB-2 workers from those countries who have worried that the bill will not pass. H.R.3012 currently finds itself in Senate backroom negotiations where the possible price to companies and other organizations needing non-immigrant workers must also be weighed against the benefit to advanced degree workers from India and China. The bill was first introduced into the House of Representatives on September 22, 2011, when visa availability for the EB-2 category was only current to April 15, 2007, for natives of the two countries. 

A possible reason for low visa demand could be INA Section 202(a)(5)'s rule that if the total number of visas available for EB-2 "for a calendar quarter exceeds the number of qualified immigrants who may otherwise be issued such visas, the visas made available under that paragraph shall be issued without regard to the numerical limitations under paragraph (2) of this subsection during the remainder of the calendar year." That means that under the present visa scheme, China and India exceed 7% anyway as other countries of the world historically do not use up the available EB-2 numbers, and so the clearing mechanism of Section 202(a)(5) frees up more numbers for both China and India. 

At the time of this writing, H.R. 3012 is still awaiting Senate action. The President is already on record as favoring the bill. The problem is that H.R. 3012 will now require 60 votes for filibuster-proof passage in the Senate because of the hold by Senator Charles Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee, which was immediately imposed after its 389-15 passage in the House in November 2011. The bill has been seized upon by the Irish lobby which is drumming up support for the legislation  conditioned upon including an E-3 program for its citizens.  (The E-3 visa is open to the same types of individuals who qualify for H-1B specialized occupation status, and does not require prior U.S.C.I.S. approval as U.S. consulates are authorized to approve such). This appears to be a case in which H.R. 3012 cannot stand on its own in the Senate, and the Irish lobby can more easily achieve its aims by attaching the E-3 provision to a bill that has already passed the House overwhelmingly.  The situation appears to be extremely fluid at this time with competing bills and backroom negotiations.  At heart is a piece of popular legislation, H.R. 3012, to which two senators of different parties wish to attach a not so popular provision for which pro-Irish support can be guaranteed to possibly put both pieces of legislation over the top. Senator Charles Schumer (D-NY) is reported to have the support of 53 Democratic senators for his bill incorporating both parts. Originally including a waiver provision for illegal Irish, his E-3 legislation is now virtually the same as the competing standalone E-3 bill of Senator Scott Brown (R-Mass.). Now the question is who will take the credit as well as what it will take for Senator Grassley to release his hold if 60 votes cannot be found.  (The Irish press as of February 18, 2012, counted 58 senators in favor of the bill).  Irish E-3 passage is especially important to Senator Brown as he is involved in a close reelection campaign against Democrat Elizabeth Warren, and the important Irish bloc expects him to deliver on the 10,500 Irish visas he has promised.  He is presently negotiating with Senator Grassley and may expect a more sympathetic hearing than Senator Schumer since he can make the argument that as a fellow Republican, he needs the legislation to have a better chance of retaining the seat for the Republican Party. 

Yet Senator Grassley has proven to be an effective opponent of foreign workers in the United States. Will he give up his opposition for the well-being of a fellow Republican Senator and his Party rather than insisting on draconian changes of law? One should be prepared for twists and turns where backroom negotiations are concerned, but the solution if 60 senators cannot be found promises difficulty for the immigrant community.  Senator Grassley introduced an amendment to H.R. 3012 on December 15, 2012, that would eliminate the visa lottery program, place greater restrictions on the H-1B program such as forcing employers to perform recruitment for virtually all positions and enhance H-1B violation penalties; and place more onerous burdens on L-1B specialized knowledge aliens and L-1's seeking extensions from new offices, subject them to the same mandatory wage system as H-1B's, and enhance the penalties for violations. The amendment was roundly rejected by the high-tech community. The amendment's provisions in full would be a heavy price to pay for the lifting of numbers restrictions on countries in the employment based categories.

Reprinted by permission of West, a Thomson business. Interpreter Release is the leading weekly immigration law periodical featuring in-depth, comprehensive analysis and authoritative coverage of legislation and regulations, cases, and agency guidance.

Copyright © 2012 Thomson Reuters.

The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

Copyright © 2003-2012 Alan Lee, Esq.
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