House Passes Bill Eliminating Employment-Based Immigrant Visa Caps as Supreme Court Opts to Consider DACA

July 12, 2019

Despite continuing gridlock on a broader approach, some immigration issues are moving, as the U.S. Supreme Court will review three cases challenging the Trump administration’s decision to wind down the Deferred Action for Childhood Arrivals (DACA) program and the House of Representatives passed a bill eliminating the cap on employment-based immigrant visas.

The Fairness for High-Skilled Immigrants Act (H.R. 1044) eliminates the 7% cap on employment-based immigrant visas and increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available in 2020 to 15%.  It also removes an offset that reduced the number of visas for individuals from China.

The bill further reserves a percentage of two employment-based green card categories—EB-2 (workers with advanced degrees or exceptional ability) and EB-3 (skilled and other workers) visas—for individuals not from the two countries with the largest number of recipients of such visas.  Of the unreserved visas, not more than 85% would be allotted to immigrants from any single country.

Political outlook for the visa bill:  140 Republicans joined 224 Democrats in passing the bill in the House.  Sen. Mike Lee (R-UT) sponsored the Senate counterpart, which has more Republican than Democratic cosponsors but less relative support.  The bill’s fate in the Senate remains uncertain.

The Supreme Court, meanwhile, set DACA arguments for November 12.  The court will decide whether the Trump administration’s decision to eliminate the program is judicially reviewable and, if so, whether it was lawful.

Outlook:  The decision could come as soon as June 20, 2020.  With arguments set in November, the issue will be elevated by the national elections.  Under this new pressure, expect Congress to renew its efforts to finding a solution.