Summary of EAGLE Act 2023 (S.3291) Green Cards Per Country Caps Removal Bill, Chances

If you are a professional working in the US on a work visa, such as an H1B Visa or an L1 Visa, you may be considering getting a Green Card (GC) at some point as it removes many of the work visa-related restrictions. There is an annual limit of 140,000 for employment-based green cards that can be issued per year.

One more important thing to note is that, of the 140,000 annual limit, there is a per-country limit of 7% ( also called per-country cap). The per-country limits impact applicants from large countries like India or China to have decades of wait time to get a green card.

Senators Mr. Cramer, Mr. Hickenlooper, and Ms. Collins introduced the bill EAGLE Act of 2023 in the Senate on November 14th, 2023, to eliminate the per-country caps. In this article, we will review the EAGLE Act of 2023 summary.

Background of S. 3291 Bill, What is EAGLE Act of 2023

Let’s look at some of the background of Bill S. 3291 and also what precisely the EAGLE Act of 2023 is.

Background of S. 3291 Bill

The US Immigration and Nationality Act (INA) provides complete guidance on the allocation of Green Cards. As per INA, 140,000 employment-based green cards are available per year, and there is a limit(cap) 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 people.

Over the past decade, many bills have been introduced in US Congress to remove the per-country caps for employment-based green cards. None of them passed both the US House and US Senate. The most recent Congress Bills from 2022 on the same topic are S. 4567 EAGLE Act of 2022 and H.R. 3648 EAGLE Act of 2022

What is the EAGLE Act of 2023? Overview of Bill S. 3291

Senators Mr. Cramer, Mr. Hickenlooper, and Ms. Collins, on November 13th, 2023, introduced Bill S. 3291, which aims to remove per-country caps for Green Cards allocation. The Senate Bill is called, “Equal Access to Green cards for Legal Employment (EAGLE) Act of 2023”, which is commonly referred as the “EAGLE Act of 2023“. This bill is based on previous versions of similar EAGLE Act bills introduced in the past few years.

Below is the screenshot of the actual US Senate bill and how it looks

Now that you have some background let’s get into the exact text of the Bill and what each section of it says.

EAGLE Act of 2023: Remove Per-Country Caps for Employment-Based Green Cards

The primary purpose of Bill S. 3291 is to eliminate the per-country-based limits for employment-based green card(GC) allocation based on country of birth. As per the current law, the per-country limits are set to 7% or 9,800 green cards.  The bill EAGLE ACT of 2023 eliminates these per-country limits.

Change in Per Country Limit for Family-Sponsored Petitions

The current Bill S. 3291 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 1^st. If the bill is passed before Oct 1^st, 2024, it would be effective from Oct 1^st, 2025.

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, and China) take up everything. Below are the transition rules.

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 card numbers/ visas. These reserved are the 30%, 25%, etc., as shown in the above table.
• Unreserved Visas: During the 9-year transition period, no country can take more than 85% of the unreserved visa numbers. These unreserved visas are nothing but 70% in Year 1, 75% in Year 2, etc. Essentially, they are saying 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.

Additional 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 who are joining primary green card applicants 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 Visas for Shortage Occupations (Schedule A workers) 4,400

For each of the seven fiscal years from the effective date (Oct 2025 to Sep 2032), not fewer than 4,400 immigrant visas should be made available for Schedule A workers(mainly nurses & physical therapists) as described in Section 656.5(a).

The big catch is that these 4,400 visa numbers should NOT be taken from the reserved pool that is set aside for the rest of the world for the first nine 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 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 1,000 visas for them.

H1B Program, LCA Process Changes in EAGLE Act 2023

Below are the H1B Visa and H1B Labor Condition Application (LCA) related provisions in the Bill:

• Post H1B Jobs on the Department of Labor’s Searchable Website:  Within 180 days from the effective date of the Bill, the US Department of Labor(DOL) should set up a “Searchable Internet website” to post the H1B positions that are available to be viewed by the 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 organizations 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 that H1B applicants will be given priority.
  • If the employer already has H1B workers, they must 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 file tax under one entity with the IRS as per Section 414.
• New H1B LCA Fee: At present, there is no fee for filing LCAs. As per the current 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 the H1B program by the DOL.
• Elimination of B1  visa in lieu ( instead) of H1B: As per the Bill S. 3291 text, the US State Department should not issue a B-1 visa for short-term work contracts instead of an H1B visa. In general, even today the B1 visa 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.  
• H1B Employers Investigation and Enforcement: Below are the clauses to enforce and tackle employer violations.
  • 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.
• Ending Media Abuse of H1B Program: In general, Media personnel such as foreign press, radio, film or other foreign media should use I Visa for their work. As per the Bill, it says that such media personnel should not be given H1B visa, if they are mainly going to be engaging in media-related work.

Clauses for Association with the Communist Party

Below are some new clauses added in the Bill S. 3291related to association with Communist Party or any other Totalitarian Party:

“Anyone who has been a member or affiliated with the Communist Party or any Totalitarian party (domestic or foreign) may not be issued H1B Visa.“

• The above clause shall not apply if the person applying for visa can demonstrate to consular officer that the membership was involuntary or solely done based on operation of law for employment, food rations, essential living or when under 16 years of age
• Also, the above clause shall not apply, if the membership to the communist party was terminated 2 years before the date of application or 5 years before the application, if the association was with a party controlling the govt. or foreign state and the applicant is not a threat to the security of the United States.
• The Secretary of State can waive the above requirement if the person applying is a parent, son, spouse, daughter, sister, or brother of a US Citizen or spouse, son or daughter of a green card holder admitted for humanitarian purposes for family unity or in the public interest of the US.

Adjustment of Status, Dependents, Work Authorization Provisions

Below are various provisions related to 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 over two 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 addresses the situation where the primary applicant is deceased and the spouse and children must 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 an 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 USD $2000 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: 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 ever revoked in the future, 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.

Latest Status of EAGLE Act of 2023 (S. 3291 Bill)

As with any bill, introduced in the House or Senate, EAGLE Act of 2023 also has to follow the typical process for a Bill to Become Law. It needs to go through Senate 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.  Below is the current status and screenshot of the same from Congress.gov

• EAGLE Act of 2023 was introduced in Senate on November 13th, 2023, and referred to the Senate Committee on Judiciary.
• The Official Bill Text is also updated on Congress.gov website. There are no amendments done to the original text of the bill.
• The Bill has not come to floor yet for debate or voting.
• The Bill has 2 co-sponsors as of December 2023.

Latest News of EAGLE Act of 2023

We track all the latest news and timeline of updates related to the EAGLE Act of 2023 on a separate page at Latest News of the EAGLE Act of 2023. This page tracks news related to both the House and Senate versions of the EAGLE Act 2023 Bill.

Chances for passing EAGLE Act of 2023 ? Can it become Law?

In the last few years, we have seen the Bills HR 1044, S386, HR 3648, go through the hoops and could not cross the finish line for various reasons. If you look at the text of the current Bill S. 3291, “EAGLE Act of 2023”, it is not much different from the previous HR 3648. The key differences is addition of clause to “Association of Communist Party or any Totalitarian”. They have made it generic communist party and removed “Chinese” association with it.

The previous versions of the bill had many more co-sponsors. Numbers-wise, there is a long way to go for the bill to get broader support. As per just these numbers, the chances for this bill to pass are very low. Having said that, immigration is a priority topic for the current administration, which is a positive sign for the future of the current new bill.

The H1B program-related clauses are very tricky as they will limit the functioning of outsourcing companies. This is a big lobbying area. Many of these large MNCs and Outsourcing players may lobby for changes to these clauses…So, very difficult to say how this pans out. As it stands today, the chances for this bill look very low. This bill has a long way to go….

What are your thoughts on the chances for the bill ? Share your thoughts in comments below.

Common FAQs

Reference : Official Text of the EAGLE Act of 2023