On June 2, 2021, Representative Zoe Lofgren (D-California) introduced the Equal Access to Green Cards for Legal Employment (EAGLE) Act (H.R. 3648). The bill seeks to equalize green card backlogs by eliminating categorical per-country caps for employment-based visa categories and raising per-country caps for family-based visa categories. The bill also includes several provisions reforming the H-1B specialty occupation visa program and providing additional flexibility for those already in the U.S. but stuck in the green card backlog.
Representative John Curtis (R-Utah) joined Representative Lofgren in introducing the bill, which has 37 cosponsors in the House of Representatives.
Background
The EAGLE Act is similar in many respects to the Fairness for High Skilled Immigrants Act, a bill that was also introduced February of 2019 — also by Representative Lofgren — and passed the House with overwhelming bipartisan support during the 116th Congress. The bill was the subject of significant negotiation and compromise in the Senate throughout 2020, and was ultimately amended four times before passing via unanimous consent just as the legislative session was coming to a close. The amended bill was not immediately put up for a vote in the House and the 116th Congress ended before further action could be taken.
Provisions in the EAGLE Act largely reflect the amended version of the Fairness for High Skilled Immigrants Act that passed the Senate on December 2, 2020.
The Equal Access to Green Cards for Legal Employment Act Would:
- Phase out per-country caps for employment-based (EB) visa categories. This would equalize the green card backlog, which primarily impacts Indian and Chinese applicants, some of whom must wait decades for green cards after their petitions have been accepted. The bill would also raise per-country caps for family-based green card petitions from 7% to 15%.
- Establish a transition period of nine years to ensure that applicants from the rest of world (ROW) — e., those not from India or China — would not suddenly be face extended wait-times as those in the current backlog are moved to the front of the line. The first year after enactment, 30% of EB-2 and EB-3 green cards would be reserved for ROW applicants; 25% would be reserved in year two; 20% in year three; 15% in year 4; 10% in years five and six; and 5% in years seven, eight, and nine.
- Provide a new status for nonimmigrant visa holders who are currently in the U.S. and waiting in the green card backlog. The new status, which would be called “early filing” or “early adjustment of status,” would permit individuals expanded travel rights and allow them more flexibility to change employers.[i] It would be available to EB-1, EB-2 and EB-3 applicants on most nonimmigrant visas who have had their I-140 green card petitions approved or pending for over two years. Petitioners would be required to have a job offer requiring a college degree and a signed letter from the employer that other U.S. citizen employees have similar terms of employment. Dependent children of the recipients of this new status would be allowed to retain legal status as dependents of their parents for the duration of the green card application process; they would be protected from aging out while their parents are in the backlog.
- Institute a series of reforms and restrictions to the H-1B specialty occupation visa program. The bill would require prospective H-1B employers to publicly advertise any openings to workers already in the U.S. on the Department of Labor (DOL) website. It would also provide additional authority for DOL to review, investigate, and punish H-1B employers for failing to pay or employ H-1B workers at the rate, location, and occupation specified on their petition; create new fees for employers hoping to sponsor H-1B workers; and prevent “50-50” companies — those with over 50 employees, more than 50% of whom are on H-1B visas — from hiring additional H-1B workers.
- Create carve outs for nurses and protections for other applicants from outside the U.S. Most individuals (≈72%) who apply for employment-based green cards are already in the U.S. working on temporary visas like H-1Bs. However, nurses often have no access to the H-1B program and often apply for EB-3 green cards from overseas.
The bill would ensure nurses have immediate access to green cards by exempting 4,400 Schedule A Shortage Occupations (primarily registered nurses) from the annual EB green card cap until seven years after enactment. The bill would also protect overseas applicants who are not from India or China by reserving 5.75% of all green cards for ROW applicants outside of the U.S. for eight years after enactment, prioritizing family members of primary applicants and applicants who have not lived or worked in the U.S. in the previous four years. The bill also increases the overall number of green cards available for applicants from China, restoring 1,000 visas per fiscal year for Chinese applicants that were limited by the Chinese Student Protection Act of 1992.
Impact
The current employment based green card backlog is over 1 million, and it is borne almost entirely by Indian and Chinese applicants. For example, under per-country caps, a new EB-3 green card applicant from Iceland is able to immediately access status as soon as his or her application is approved. However, successful Indian applicants in the same visa category face 84-year waits. The EAGLE Act seeks to address this imbalance, reducing these untenable backlogs while limiting the negative impact on ROW applicants.
Unlike some other previous legislative efforts, the EAGLE Act would not increase the total number of green cards available annually. It would not expedite or reduce the green card backlog. However, phasing out per-country caps would significantly ease the lengthy wait times faced by Indian and Chinese applicants. In doing so, it would distribute part of the burden of the backlog onto all other applicants. The bill includes several provisions designed to ease this additional burden on ROW applicants, including carve outs and protections for those applying from overseas and additional flexibility for those waiting in the U.S.
The National Immigration Forum would like to thank Garrett May, policy intern, for his extensive contributions to this bill summary.
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[i] H-1B holders and others on temporary visas in the U.S. face numerous challenges while waiting in the green card backlog, particularly as the wait time grows. Many of these individuals remain tied to the terms of their initial temporary visa while they wait, making it difficult to change employers and requiring them to file forms and request permission from U.S. Citizenship and Immigration Services in order to travel outside of the U.S. The new status would provide extended work authorization and travel permission so that those waiting in the backlog have more flexibility to move jobs and make trips overseas.