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116th Congress Chooses Small Scale Reforms to Change the Legal Immigration System

Over the last year, the debate over the ongoing migration crisis at the U.S.-Mexico border has overshadowed discussions about reforming the U.S. immigration system’s employment channels that enable non-citizens to work in the United States. As this blog post shows, the 116th Congress has been active in introducing legislation that reforms different parts of the employment-based immigration system. While some of these bills would overhaul the entire employment-based system, our review of immigration legislation finds that most target specific programs like the high-skilled, investor, and agricultural worker visa programs. These findings suggest that if immigration reform is considered in the 116th Congress, it may be through piecemeal reforms rather than broad systematic changes seen in comprehensive immigration reform bills like 2013’s “Gang of Eight” Bill, S. 744.

This review did find instances where Members of Congress introduced bills that would completely change the employment-based system. In April 2019, House and Senate Republicans introduced the RAISE Act, which would replace the current employment system with a points-based system that uses an individual’s background to determine their eligibility to enter the United States. Although the bill maintains current employment-based immigration levels, it eliminates the diversity visa lottery and cuts refugee and family-based admissions to 55,000 and 88,000 per year, respectively. Together, these changes would skew the legal immigration system toward accepting a greater proportion of high skilled immigrants and shrink the size and geographic diversity of the immigration pool.

However, for the most part, so far, this Congress has proposed more legislation to amend specific employment visa programs rather than more comprehensive legal immigration reforms. Figure 1 lists the high skilled visa programs that would be changed via bills introduced so far in the 116th Congress:

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Figure 1: Bills Targeting High-Skilled and Investor Visa Programs

  Non-Immigrant Visa (Temporary) 
VisaEconomic SectorVisa DescriptionBills Impacting Visa
E-2Investors• 2-year extendable (uncapped) visa to invest capital in U.S. business
• Non-citizen’s nation must have Treaty of Trade and Commerce with the United States 2
• E-2 Visa Improvement Act (H.R. 2124): E-2 convertible to legal permanent residency after 10 years of job creation
Immigrant Visa (Permanent)
EB-1 to EB-5Mostly High Skilled• Allows individuals to permanently immigrate to the United States as a worker or investor
• Program allocates 140,000 visas based on 5 preference categories that prioritize individuals with higher skills and educational backgrounds
• Program caps every country’s allotment of these visas at 7 percent
• Fairness for High Skilled Immigrants Act (S. 386/H.R. 1044): Ends 7% per-country cap on EB visas
• The BELIEVE Act (S. 2091): Ends 7% per-country cap; raises EB visa limit to 270,000
• Keep STEM Talent Act (S. 1744): Grants STEM educated workers Green Card pathway exempt from all EB caps
• Conrad State 30 and Physician Access Reauthorization Act (S. 948/H.R. 2895): Exempts non-citizen physicians from EB caps if they worked in areas with physician shortages or Veteran Affairs facilities
EB-5Investors• Fifth preference category in EB system
• Allows investors to apply for a Green Card if they invested $1,000,000 (or $500,000 in a targeted low employment area) and created 10 jobs for citizens or immigrants
• Subject to seven percent per country cap in EB system
• U.S. Nationals Employment Act (H.R. 1207): Hiring non-citizen US nationals now counts for job creation goals
• H.R. 2173: Reserves 100 visas for declared major disaster zones
• To Terminate the EB- 5 Program (H.R. 773): Abolishes EB-5 program
Source: CRS (1)(2), USCIS, INA §203(b)(5)

Members of the Senate have introduced bills that would eliminate the backlog for high skilled visa programs and expand them in certain cases. The Fairness For High Skilled Immigrants Act, which the House of Representatives passed on July 10, 2019, abolishes per country caps in the employment-based immigration system that allows individuals to access a Green Card to work or invest in the United States. The Backlog Elimination, Legal Immigration, and Employment Visa Enhancement (BELIEVE) Act eliminates these caps and expands the number of visas in the employment-based system from 140,000 to 270,000.3 S. 1744 would create an additional pathway in the employment-based system for immigrants with a U.S. advanced STEM degree and certified STEM employment offer by exempting them completely from the system’s annual caps. 4 Finally, S. 948, which reauthorizes and expands the Conrad State 30 program 5 , exempts non-citizen physicians who received a job-offer waiver from the U.S. government to work in areas with physician shortages or Veteran Affairs facilities from the employment system’s cap if they fulfilled the waiver’s requirements.

Several House bills would adjust admission numbers and requirements for immigrants that make investments in the United States. The bipartisan H.R. 2124 would grant legal permanent residency status to up to 10,000 E-2 treaty non-immigrant investors, if they have created jobs and met certain requirements for 10 years. Other House bills reform the goals of the EB-5 visa program, which admits immigrant investors if they will invest capital in a business or project that will create at least 10 jobs for authorized US workers. H.R. 1207 alters the EB-5 visa requirements so that hiring U.S. non-citizen nationals such as those from outlying U.S. territories like the Northern Mariana Islands fulfills the visa’s job creation goals. H.R. 2173 expands the program’s targeted investment areas by reserving 100 visas for each declared major disaster area to incentivize investment and economic recovery in those zones. Conversely, H.R. 773 would immediately abolish the EB-5 visa program, which has been a goal of critics who view the program as rife with fraud and security risks.

In addition to high-skilled visa programs, there are also bills that would change visa programs for temporary agricultural and non-agricultural workers. Figure 2 lists the bills that would impact these visa programs:

Figure 2: Bills Targeting Agricultural and Non-Agricultural Temporary Visa Programs

  Non-Immigrant Visa (Temporary) 
VisaEconomic SectorVisa DescriptionBills Impacting Visa
H-2ASeasonal Agricultural Work• Up to 3-year employer sponsored visa to for seasonal or temporary agricultural work
• No annual numerical cap
• BARN Act (H.R. 60): Streamlines administrative procedures; reduces required worker protections
• Helping Labor Personnel on Farms Act (H.R. 2801): 2-year work/residency status for irregular workers; annual agricultural workers added to H-2A program
• Paperwork Reduction for Farmers and H-2A (H.R. 3319): Expands H-2A eligible jobs
• Dairy and Sheep H-2A Visa Enhancement Act (H.R. 1778): Adds dairy workers and sheepherders to H-2A program
H-2BSeasonal Non-Agricultural Work• Up to 3-year employer sponsored visa to work in temporary non-agricultural position (e.g., groundskeeper or housekeeper)
• 66,000 visa cap (except for returning aliens; fish roe workers; and some U.S. territories)
• Prioritizing Help to Businesses Act (S. 135): Creates up to 2,5000 extra visas for low-unemployment states
Immigrant Visa (Permanent)
Blue Card Status (Proposed)General Agricultural Labor and Services• Eight-year temporary residence status, employment authorization, and deportation protection
• Adjustable to legal permanent residency after eight years of agricultural work
• Agricultural Worker Program Act (S. 175): Creates temporary “Blue Card” status and Green Card pathway for irregular workers
Source: CRS (1)(2), USCIS

In the Senate, S. 175 would establish a nationwide pathway to legal permanent residence for current non-immigrant and irregular agricultural workers by creating a “blue card” status that would provide these immigrants and their families temporary residency, protection from deportation, and employment authorization for up to eight years. Aliens and their families could convert blue card status to legal permanent residency if the worker performs substantial agricultural work during this eight-year period, pays a fine and federal taxes, and meets other legal requirements. S. 135 targets regional shortages of agricultural workers by allocating the pool of H-2B temporary non-agricultural visas to states with low unemployment rates (most in need of more workers) and creating up to 2,500 additional annual visas for each of these states.

Meanwhile, House Members have introduced targeted legislation to amend the H-2A temporary agricultural worker and H-2B temporary non-agricultural non-immigrant worker visa program. For example, H.R. 60 alters the H-2A program by streamlining administrative procedures and incentivizing employers to utilize the program by reducing worker protections. Most notably, this bill eliminates the requirement that employers hire any qualified American applicants before half of the H-2A worker’s contracted time passes, reduces wage and housing rights for H-2A workers, and bans workers who overstay visas from the program.

Other House bills aim to increase the total number of eligible workers under these programs. H.R. 2801 would provide two-year temporary residency status and employment authorization to current irregular agricultural workers. It would also establish a legal path for future workers by including annual agricultural workers in the uncapped H-2A visa program, which currently only applies to seasonal agricultural workers. H.R. 3319 would expand the job categories eligible for the H-2A and H-2B program such as aquaculture, equine work, and wild seafood processing. Finally, H.R. 1778 would designate dairy workers and sheepherders as eligible for H-2A visas, which these workers may extend for twice the normal maximum length for a total of six years.

The introduction of these separate legal immigration bills seems to go against the comprehensive immigration reform model that has been the subject of major legislative efforts over the past decades. Although many of these bills will not become law, lawmakers clearly see narrow bills as the vehicle to change the employment-based system, especially after Congress has repeatedly failed to pass comprehensive immigration reform bills like S. 744 since 2014. The House’s passage of the Fairness for High Skilled Immigrants Act, which received significant bipartisan support, lends some credence to this approach. Given that the immigration system’s problems extend beyond the scope of any of these separate bills, Congress may eventually need to take up another comprehensive reform effort in the future. However, the 2020 presidential campaign—and the intense partisanship that it will generate over issues like immigration—may dissuade both parties from launching into this project through 2021, making small scale changes the de facto model for immigration reform for the near future.

2 The list of countries that fall under this category appears here:
3 The bill’s scope extends beyond these two provisions. For instance, it would also exempt spouses and children of individuals entering the United States through the employment-based system from these caps. The immigration system deducts these individuals from the system’s 140,000 visa cap.
4 Although non-citizens do not need not be in the United States to access this benefit, many could apply for a Green Card after entering the United States on a F-1 student visa or the H-1B high skilled visa. S. 1744 would permit F visa students to extend or change such non-immigrant visas to pursue their degree even if they seek a Green Card.
5 This program waives the requirement that physicians on J-1 exchange visitor visas depart the U.S. for two years before applying for a visa or legal permanent residency if they will work in areas with physician shortages.