H-1B and Green Card Visa Relief in Sight

By: Attorneys Robert L. Reeves and Joseph I. Elias

The U.S. Senate Judiciary Committee heeding the calls of the public and U.S. employers passed a proposal that promises to alleviate nonimmigrant and immigrant visa number backlogs. Under the current state of immigration affairs, the H-1B visa numbers for fiscal years 2005 and 2006 have been exhausted (some do remain for foreign workers who obtained their Master’s degrees from U.S. universities.) U.S. employers willing to sponsor foreign workers in H-1B status must wait until October 1, 2006 for the 2007 visa numbers to become available. On the immigrant front, high demand for immigrant visa numbers has resulted in a four-plus-year waits for visa numbers to become available. This has led to great frustration for employers who cannot find U.S. workers and rely on foreign talent. The employers and immigration bar have raised their concerns with Congress to which the Senate Judiciary Committee has responded in its October 20, 2005 proposal.

First, in the immigrant visa category, the proposal will recapture unused employment-based visas from prior years for immediate allocation of up to 90,000/year. Estimates indicate there are only 90,000-100,000 unused numbers for recapturing. In addition, the proposal will exempt spouses and minor children from counting against the annual cap on employment-based immigrant visas. Currently, if an accountant with a family of five immigrated to the U.S., 5 visas would be deducted from the employment based visa pool. Under the proposal only one visa number would be deducted. This is expected to lead to an annual increase of 80,000-90,000 employment-based immigrant visas being available. These increases should help reduce the 4-or-more-year wait and reduce chances of visa numbers becoming unavailable all together. Current projections by the State Department are that several employment based visa categories will be unavailable within the next 6 to 8 months.

The proposal would also allow individuals to apply for adjustment of status before an immigrant visa number is deemed currently available. This can afford spouses the opportunity to obtain work authorization. As a compromise, the proposal imposes a new $500 fee on immigrant visa petitions for the EB-1, EB-2, and EB-3 categories.

H-1B visa numbers were also specifically addressed. The proposal would allow the recapture of approximately 300,000 unused H-1B numbers dating back to FY 1991. The recaptured numbers can only be distributed in increments of 30,000 annually. This effectively raises H-1B visa numbers from 65,000 to 95,000 for at least 10 years. The recaptured visa numbers would also be subject to an additional $500 fee.

The proposals are a step in the right direction. Both houses of Congress will need to come up with the same bill before it can be sent to the President to sign into law In the mean time the immigration bar and employers are contacting members of Congress to support the proposals and push through relief as quickly as possible.