On June 2, 2021 Reps. Zoe Logfren (D- CA) and John Curtis (R-UT) introduced the bipartisan Equal Access to Green Cards for Legal Employment (EAGLE) Act of 2021 to strengthen the temporary H-1B high-skilled visa, remove certain restrictions on green cards for employment-based visas, and make it easier for employers to hire foreign workers based on merit rather than nationality.
Congress has attempted and failed to pass legal immigration reform to modernize America’s high-skilled immigration in the past. In fact, the EAGLE Act is the reintroduced version of the Senate amended Fairness for High-Skilled Immigrants Act (H.R 1044) which unanimously passed the Senate in 2020. The Fairness for High Skilled Immigrants Act was a popular bipartisan attempt to reform America’s legal immigration that passed the House in 2019 by a significant margin and passed the Senate on a voice vote, with amendments. However, the House and the Senate never reconciled their versions and the bill lost momentum while the Senate amendments caused some opposition to the bill.
Other attempts have also been underway to repair U.S.’ broken legal immigration system. Earlier this year, Congress introduced the U.S. Citizenship Act (USCA) of 2021 in both the House and the Senate, an attempt at a comprehensive immigration reform based on the Biden administration’s proposal. The USCA proposes similar legislative changes that ease employment-based immigration. However, it lacks reforms of the temporary high-skilled visa system. While the verdict is still out on whether Congress can successfully pass comprehensive immigration packages, BPC suggests that stand-alone bipartisan bills, such as the EAGLE Act, can be effective vehicles to reform the country’s broken employment-based immigration system.
The EAGLE Act, like USCA, proposes to eliminate the 7% per country cap on employment-based green cards. The 7% per country cap, instituted in the Immigration and Nationality Act of 1965, continues to be a hurdle for immigrants from certain large countries that have higher applications for green cards. Nationals of India and China face unprecedented backlogs in accessing permanent residency in the United States due to these caps. For example, Indians have the highest backlog of any nationality with approximately 800,000 petitions and an estimated wait for a green card in the EB-2 and EB-3 categories of 89 years. These bills aim to make it easier for foreign workers to access green cards, regardless of their country of birth, albeit in diverse ways.
The USCA and the EAGLE Act would protect dependent children of H-1B visa holders from “aging out” of status due to back logs by ensuring that children of H-1B workers remain eligible for a green card regardless of their age. The “aging out” of dependent children of H-1B visa holders has been a major concern for many immigrants. Currently, children of foreign workers, who are dependent of their parents’ temporary visas, are at a risk of aging out of eligibility once they turn 21. If an immigrant visa is not available on time, then the dependent child is required to convert to another nonimmigrant status or depart the country. They would then have to qualify for a permanent residency on their own or remain undocumented.
The USCA tries to reduce the backlog of employment-based immigrant visas a little differently than other bills, by adding 30,000 additional annual visas to the EB-3 category, bringing the total employment-based visa cap from 140,000 to 170,000. Additionally, the legislation proposes to recapture any unused immigrant visas from fiscal years 1997 to FY2020 to increase the ceiling, in addition to eliminating the per-country cap. Other cap-related reforms include exempting certain groups1 and foreign doctoral students who graduate from U.S. universities in STEM fields from the annual cap.
The EAGLE Act takes a more elaborate approach to reducing backlogs with a phased timeline. During the first nine fiscal years after the enactment of the bill, a certain number of immigrant visas are reserved for citizens from countries other than India and China. As seen in Figure 1the EAGLE Act begins by allocating 30% of immigrant visas in the first fiscal year to citizens of countries other than India and China and continues to reduce that allocation until it is phased out after nine years. This phased approach was also present in the amended Fairness for High Skilled Immigrants Act after opposition from groups who believed they would be completely shut out of immigrant visas while the backlogs for India and China are cleared.
As previously mentioned, the USCA Act does not include major reforms of the temporary H-1B visa and BPC has noted that the lack of high-skilled temporary visa reform may be the bill’s major blind spot. However, the EAGLE Act provides substantial reform to the H-1B visa program. The H-1B visa mandates in the EAGLE Act were also present in the amended Fairness for High Skilled Immigrants Act and were considered controversial in the business community. For example, the bills would require that employers post any new H1B positions on the Department of Labor’s website for at least 30 days.2 The advertisement must include the salary and wage range as well as occupational classification, job title, and education and experience, among other things.
To protect U.S workers, the EAGLE Act would restrict a single firm from hiring too many H-1B workers. For example, no employer can have more than 50% of their workforce on H-1B or L-1 visas. Additionally, the bill would require employers to pay a Labor Condition Application fee, which would be placed in a new “H-1B Administration, Oversight, Investigation, and Enforcement Account” and used by DOL to ensure the proper use of the H-1B program.
The EAGLE Act would mandate provisions to ensure that prevailing wages are calculated relative to similar employees within the same geographical area,3 and require that employers submit the necessary documentation to DOL on the procedure that yielded the prevailing wage for an H-1B employee. The bill would also require employers to submit W-2s for any H-1B employee in the specified period to DOL, ensuring that foreign workers are receiving fair wages.
The EAGLE Act would allow most immigrants with an approved employment-based petition to apply for adjustment status to permanent residency if they have been waiting for two years or more, regardless of whether an immigrant visa is available.4 However, the adjustment of status application can only be approved once there is an immigrant visa available. Workers who have a pending adjustment of status application would be eligible to apply for work authorization on behalf of themselves and their family until their application is adjudicated. Further, nonimmigrants waiting in the queues would be given advance parole for travel authorization while their application is pending, and dependents previously authorized to work would receive employment authorization.
The EAGLE Act gives Congress one more opportunity to pass bipartisan reforms to improve America’s high-skilled immigration system. While many are still hoping for Congress to finally pass comprehensive immigration reform, even if it did, the USCA would do very little to reform America’s high-skilled temporary visas.
The EAGLE Act, like the Fairness for High Skilled Immigrants Act before it, provides a nuanced approach that would make improvements to the high-skilled immigration system. If the United States is to remain a competitive destination for highly skilled immigrants, our immigration and employment system must run efficiently. Congress has failed to pass meaningful reforms to high-skilled visas, subjecting individuals to an increasingly lengthy, convoluted, and bureaucratic immigration process. Given that this version of the bill previously passed the Senate with a unanimous vote, perhaps the EAGLE Act will allow Congress to deliver long-needed reforms to our immigration system.
1 This includes immigrants and their family members with an approved immigrant visas whose wait time have exceeded 10 years.
2 Employers are not required to post positions that are being filled by foreign workers already counted against the H-1B visa cap.
3 The prevailing wage calculation is based on the best information available for the desired area within normal commuting distance of the place of employment.
4 Currently, beneficiaries of an approved petition must wait until a visa is available under the yearly cap to file for adjustment of status and must maintain their nonimmigrant status until that time. By filing an adjustment application, the beneficiary, and their family, can maintain work authorization and gain travel documentation without regard to their previous nonimmigrant status.