Hold on Bill to End Per-Country Cap Lifted

In July 2012, Senator Chuck Grassley (R-IA), the ranking Republican on the Senate Judiciary Committee, agreed to lift his hold on the Fairness for High-Skilled Immigrants Act (H.R. 3012) that was passed by the U.S. House of Representatives. As we reported in the December 2011 issue of the Immigration eAuthority, under current law, the total number of employment-based immigrant visas made available to natives of any foreign country in a given year cannot exceed 7% of the total number of such visas made available in that year. H.R. 3012 eliminates this per-country percentage cap by FY 2015 and also increases family-based visa limits from 7% per country to 15% per country. If enacted into law, the green card wait times for employment-based immigrants from high-volume user countries, such as China and India, would be reduced. On the other hand, slower processing for natives of all countries seems likely.

Senator Grassley reached an agreement with Democrats, led by Senator Chuck Schumer (D-NY), to lift the legislative hold on the bill in return for the bill’s addition of new H-1B enforcement provisions, including increased U.S. Department of Labor (DOL) oversight of employers that use the H-1B visa program and annual compliance audits. The proposed legislation will grant the DOL broad powers to deny Labor Condition Applications (LCAs) based on unspecified “indicators” of suspected fraud. As a consequence, H.R. 3012, if enacted in its current form, is likely to cause delays in the processing of H-1B petitions.

More specifically, under the deal, an amendment to the bill would, among other things:

• Require the DOL to review LCAs not only for “completeness and obvious inaccuracies,” but also for “clear indicators of fraud or misrepresentation of material fact”;

• Allow the DOL to conduct compliance surveys of the extent to which employers are complying with H-1B requirements; and

• Require the DOL to conduct annual compliance audits of H-1B dependent employers.

The newly-amended H.R. 3012 has the potential to delay the processing of H-1B petitions by granting the DOL unfettered ability to audit and defer issuance of an LCA for an indeterminate amount of time, deny LCAs based on “indicators of fraud” that are undefined in the bill, and even authorize compliance surveys and audits of H-1B employers without any indication of fraud. The Grassley amendment also expands H-1B employer investigation triggers and the time period for investigations.

Senator Grassley’s release on the legislative hold is a significant step towards H.R. 3012 becoming law. However, the bill must pass through several stages before being enacted. Ogletree Deakins will continue to monitor developments with respect to this legislation and provide updates.