Many professionals working in the US on a non-immigrant visa like H1B, L1 aspire to get a Green Card (GC), which makes them permanent residents in the US. Getting a green card opens up opportunities as these professionals are not bound by visa restrictions to pursue their dreams like starting a company or switch companies.
As per the Immigration and Nationality Act (INA), which has guidance on the green cards allocation, of the total 140,000 employment-based green cards available per year, there is a limit of 7% (9,800) per country. This per-country cap is fixed, irrespective of the size of the country. A country like Iceland with a 338,000 population gets the same number compared to India which has about 1.339 billion population. Many attempts have been made in the past to remove this per-country cap.
Today, June 2, 2021, Rep. Zoe Lofgren and Rep. John Curtis introduced a bill, EAGLE Act of 2021, that addresses the same issue to remove per country caps. In this article, we will review the background, the official text of the bill, how it is the same or different from last year’s HR 1044 or S386 Bill, and review its chances of passing in Senate & House.
Background of EAGLE Act on Per Country Caps Removal HR 3648
Over the years, there were many bills that were introduced in US Congress to remove the per country caps for employment-based green cards. None of them passed both House and Senate. The most recent Congress Bills from 2019 and 2020 that address the same issue are HR 1044 and S 386. You can check the history of news with the timeline for HR 1044, S386
After a lot of debate, compromises, amendments, the final version of the bill that combined both S386 and HR1044 passed in the Senate in early December 2020. Check the final HR 1044 + S386 Bill that Passed in Senate for complete info on it. But, Due to disagreements with the final amendments added related to Chinese Military & Communist party associated clauses the bill was not taken up in House in the final session.
Now, the introduced bill today in House H.R. 3648, called “Equal Access to Green cards for Legal Employment (EAGLE) Act of 2021” is based on final versions of the HR 1044 & S386 that aimed to remove per country caps. The reason for this new bill introduction is also due to the fact that the other bill US Citizenship Act of 2021, which promises to remove per country caps for green cards has not moved since it was introduced in Feb 2021.
Now that you understand the background, let look at the summary of the bill and all the clauses in it. We have divided the bill summary by topic for easy review.
Remove Per Country Limits for Employment Based GC Petitions
The main purpose of the bill is to eliminate the per country-based limits for employment-based green cards(GC) allocation based on country of birth. The current limits are set to set to 7% or 9,800 per country for the same. As per the current EAGLE ACT of 2021 it eliminates these per country limits.
Change in Per Country Limit for Family Sponsored Petitions
The current bill also increases the limit of family sponsored green card petitions from 7% to 15% per fiscal year. The limit would be 2 percent for dependent areas (these are not independent countries, but dependent colonies, parts of certain countries like French Polynesia of France)
Effective Date of the Bill
This would be effective from the first day of the second fiscal year after the bill is passed and signed into law. In general, DHS’s fiscal year starts on Oct 1st. If the bill is passed before Oct 1st, 2021, then it would be effective from Oct 1st, 2022.
Transition Rules – 9 Years
There is a 9-year transition period after the effective date, to better transition and not have major two countries (like India, China) take up everything. Below are the transition rules.
|Fiscal Years||Percentage of Reservation|
|First Fiscal year after effective Date (Oct 2022 – Sep 2023)||30% reserved for rest of the world (ROW) and only 70% to be allocated to major countries like India, China.|
|Second Fiscal year after effective Date (Oct 2023 – Sep 2024)||25% reserved for ROW, 75% available for major countries like India, China|
|Third Fiscal year after effective Date (Oct 2024 – Sep 2025)||20% reserved for ROW, 80% available for major countries like India, China|
|Fourth Fiscal year after effective Date (Oct 2025 – Sep 2026)||15% reserved for ROW, 85% available for major countries like India, China|
|Fifth and Sixth Fiscal years after effective Date (Oct 2026 – Sep 2028)||10% reserved for ROW, 90% available for major countries like India, China|
|Seventh, Eighth and Ninth Fiscal years after effective Date (Oct 2028 – Sep 2031)||5% reserved for ROW, 95% available for major countries like India, China|
Per Country Levels during the 9 year Transition Period
- Reserved Visas: During the 9 year transition period, no country from the rest of the world can take up 25% of the total reserved green cards numbers/ visas. These reserved are the 30%, 25%, etc. as in the above table.
- Unreserved Visas: During the 9 year transition period, no country can take more than 85% of the unreserved visas numbers. These unreserved visas are nothing but 70% in Year 1, 75% in year 2, etc. Essentially, they are telling that the maximum a country like India or China can take is 85% of this unreserved pool.
- Unused Visas Clause: During the 9 year transition period, if any of the visas are leftover or unused due to the clauses as listed above like per country levels, and reservations, then such visas should be given to the remaining ones in line without applying such restrictions.
Reserved Visa for Rest of the World with Approved I-140
For the first 9 years from the effective date of the Bill, 5.75% of the employment-based green cards would be given to the rest of the world (not major countries like India, China), who have an approved immigrant petition (I-140) but waiting in line due to backlog, in the following order.
- Family members joining primary green card applicant as dependents.
- Green Card applicants, who have not lived or worked in the US at any point in the previous 4 years since they filed their Green Card petition from outside of the US.
- Any other immigrants from the rest of the world countries, who are waiting in line with approved I-140 for their green card slot.
Reserved for Shortage Occupations (Schedule A workers) 4,400
For each of the seven fiscal years from the effective date (Oct 2022 to Sep 2029), not fewer than 4,400 immigrant visas should be made available for Schedule A workers as they are described in Section 656.5(a).
The big catch is that these 4,400 visa numbers should NOT be taken from the reserved pool set aside for the rest of the world for the first 9 years, including the 5.75% set aside for the same group waiting with approved I-140s. Also, the dependents joining Schedule A workers would be entitled to get an unreserved visa(not from the reserved 4,400) and considered in the same order.
For example, if let’s say each of the nurses under these 4,400 reserved visas, gets two dependents, they will consume 8,800 from the general pool. The general pool is essentially the quota of large countries like India, China
Chinese Student Protection Act: The bill also eliminates the limiting clause in the Chinese Student Protection Act of 1992 and restores 1000 visas for them.
H1B Program, LCA Process Changes in EAGLE Act 2021
- Post H1B Jobs on Department of Labor : Within 180 days from the effective date of the Bill, the Department of Labor(DOL) should setup a “Searchable Internet website” to post the H1B positions that are available to be viewed by public for free. The job has to be posted for at least 30 days on the website and has to have all the below information :
- Job Description, Title, Occupational classification, education, training and experience required.
- Salary and wage details, employment benefits
- Location of the employment
- Process to apply for the position.
- DOL may work with private companies, non-profit orgs to develop and manage the H1B jobs website.
- H1B Employer Application Requirements for New Applications: Below are the various rules that need to be complied with by the employer when they do recruitment for open positions.
- For new applications, the employer or anyone hiring on behalf of the employer should not advertise the position saying that it is available only to H1B holders and there will be a priority for H1B applicants.
- If the employer already has H1B workers, they need to submit the IRS W-2 forms related to H1B workers to the DOL Secretary.
- The LCA should also have the prevailing wage determining methodology information.
- New H1B Petitions Requirements – Not more than 50% L1 + H1B: If the employer has 50 or more employees in the US, then the sum of H1B and L1 visa holders cannot be more than 50% of total employees.
- This is also called the 50-50 clause. This only applies to new H1B filings and does not apply to H1B Extensions or Transfers (change employers)
- This requirement will be applicable, 180 days after the effective date of the Bill.
- Any subsidiaries or group-related companies, that are part of one group, are treated as a single employer for the above provision, as long as they are filing tax under one entity with IRS as per Section 414.
- New H1B LCA Fee : Currently, there is no fee for filing LCAs. As per the current passed Bill, for administrative expenses, DOL has to come up with a fee for LCA filing. It will be tracked under an account called ‘H–1B Administration, Oversight, Investigation, and Enforcement Account’ and used for H1B program by DOL.
- Elimination of B1 visa in lieu ( instead) of H1B : As per the text in Bill passed in Senate, US State department should not issue B-1 visa for short term work contracts, instead of H1B visa. In general, even today B1 should not be used for short-term projects. The goal of this clause is to weed out companies trying to eliminate the LCA process and H1B for any short-term work. This is something that many companies use and abuse as well for short-term projects, the trick is in the enforcement.
- H1B Employers Investigation and enforcement: Below clauses were added in the Bill that was passed in Senate to enforce and tackle violations by employers.
- Additional protections for employees who report violations of employers related to wages or LCA provisions
- Information sharing between USCIS and DOL regarding the H1B petitions that can be used by DOL for enforcement and compliance.
- Additional authority for Dept of Labor (DOL) to review the LCA beyond just the completeness of the LCA form and to look for any fraud or false information by employers.
- H1B Labor Condition Application(LCA) Wages, Compliance :
- Prevailing wage enforcements to make sure the employers are obligated to pay the actual wages that are there in a particular geographic area for a similar experience, job role with similar duties.
- If there are complaints, DOL may initiate investigations in detail. Also, DOL may conduct surveys and annual audits for LCA compliance.
- DOL to conduct annual compliance audits for employers with more than 100 employees and have 15% of the workforce as H1B. Annual reports on audit and compliance for public review.
- The penalties amount paid by employers for violations increased to $3000, $15000, and $100,000 for anyone who violates any of the rules of LCA.
- Expansion of DOL’s authority to conduct investigations based on anonymous complaints, where DOL would provide notice and details to respond before investigation. Also, if DOL finds the employer did not comply with requirements, such info may be shared with interested parties and a hearing with them within 60 days. Also, penalties will be imposed, if found any violations.
Adjustment of Status, Dependents, Work Authorization Provisions
Below are various provisions related dependents, adjustment of status, work authorization, etc.
- Apply for Adjustment of Status ( I-485 Application ): You can apply for adjustment of status using I-485, both applicant and eligible dependents if you have your Immigrant Petition (I-140 application ) approved or pending for more than 2 years. So, you do not have to wait for the Priority date to be current to apply for the Adjustment of Status (I-485).
- Dependent Child Aging out – Adjustment of Status: If you file for adjustment of status as described above, then your dependent child will continue to qualify for the application of a green card, irrespective of the age of the child. This is the one that many refer to aging out of children waiting for their green card.
- Deceased Principal Applicant: Similar to above, if you file for adjustment of status, then you will continue to be eligible for a green card as a dependent, even if the principal applicant has died. This provision is to address the situation, where the primary applicant is deceased and spouse, children have to leave the country.
- Work Authorization, Travel Permission: The applicant who files the adjustment of status ( I-485) as per above, will be eligible for work authorization and travel permission (Advance Parole) as well.
- Approval of Adjustment of Status Application : The approval of adjustment of status (I-485) application filed will not be approved until the priority date becomes current (immigrant visas are available)
- Duties, Hours and Compensation: The terms and conditions, working hours, compensation, duties, etc. for the applicants who have file adjustment of status application (I-485) has to be similar to US workers working in same area. Even, if the employer does not have anyone employed on similar terms, the employer is obligated and needs to attest that they are providing similar terms and conditions, duties, etc.
- Bona Fide Job Offer (I-485 Supplement J) with EAD Application: It is required by the principal applicant to file a confirmation of Bona Fide Job Offer or Portability, which is nothing but I-485 Supplement J form, with any Employment Authorization (EAD) Application. The EAD will be valid for 3 years.
- The applicant needs to file I-485 Supplement J for new and renewal applications of EAD. Also, the applicant needs to provide supporting documentation to show that the terms and conditions of the job role are same as US workers and also include a signed verification letter stating the same from current or prospective employer. If such documentation is not provided, USCIS can deny the I-485 for the applicant and dependents.
- Fee for I-485 Supplement J : There will be a fee of $2000 USD collected for each of the I-485 Supplement J that you file.
- Priority Date becomes Current – I485 Supplement J: To adjudicate I-485 application, when Priority date becomes current, USCIS may ask you to file I-485 supplement J, if they do not have your latest I-485 J supplement within previous 12 months.
- Limitation on Work Authorization for Dependents: This is a tricky one…It tells that if the applicant was not eligible for work authorization or did not had work authorization at the time of filing of Adjustment of Status (I-485) application, then they will not be eligible for work authorization during the pending state of the application. For example, if H4 EAD rule is revoked, then H4 applicants would technically not have work authorization…so, they may not be eligible for work authorization as they wait for the priority date to be current. See below. The only exception to get that is to demonstrate compelling circumstances to USCIS to get the EAD.
- Effective Date and Validity: All the above provisions will be applicable after one year from the effective date of the Bill. They will sunset after 9 years from the effective date of the bill. If you were to file during the 9 years period, they would be still adjudicated even after the 9 years.
Next Steps for EAGLE Act 2021 or HR 3648 Bill ?
The next step for the bill is to follow the typical process for a Bill to Become Law. Usually, it goes through House sub-committees, committees, voting. Many of these could be skipped as well as this bill is not new and can go for voting as well. We need to see how it progresses. As of now, the bill status is not updated on the Congress.gov website yet. Will update this section as we have more updates.
What are the chances for EAGLE Act 2021 to become Law ?
We have seen the HR 1044, S386 go through the hoops and could not cross the finish line. If you look at the current text of the Bill from EAGLE Act 2021, it is not much different from the previous bill that was passed in Senate in December 2020. The key differences are the removal of the clauses related to “Association of Chinese Military or Communist Party” and the limits on the H1B, H4 Holders applying for Green Cards during the 9-year transition period.
Immigration is a priority topic for the current administration, which is a positive sign for the future of the bill. Having said that, we need to see how the dynamics would play in Senate. So, we do not know at this point, who can put a hold on the bill. Also, the H1B program related clauses are also tricky as they will limit the functioning of outsourcing companies. It is too early to say. This bill has a long way to go….
What are your thoughts on the chances for the bill ? Share your thoughts in comments below.
No. US House Bill H.R. 3648, which is called ‘EAGLE ACT of 2021’, was introduced in House and now with House Judiciary Committee. It is yet to come on the floor for debate and voting.
No. There is no immigration bill called EAGLE Act of 2021 that is introduced in Senate yet. Currently, there is only House version of the Bill.
The immigration bill, EAGLE ACT of 2021, is currently with House Judiciary Committee in the House.
You can check Congress.gov HR 3648 link, it takes you to the official page for the bill.
Reference : Official Text of the EAGLE Act of 2021