S.386/H.R.1044 legislation depends on how much pressure is exerted: Sheela Murthy

The immigration attorney says there’s push back against the bill from organizations representing nationals of countries other than India and China.

The United States Senate passed the “Fairness for High-Skilled Immigrants Act, or S.386, which increases the per-country cap on family-based immigrant visas from the current 7 percent to 15 percent, on December 2. The House of Representatives had passed a companion version last July 2019.

The passage of S.386 had given hope to tens of thousands of Indian nationals currently awaiting Green Cards. For the Fairness for High-Skilled Immigrants Act to become law, both the House version and the Senate one need to be reconciled.

However, on December 21, the author of H.R. 1044 and Chair of the House Immigration and Citizenship Subcommittee, Rep. Zoe Lofgren, said that she was disappointed that the House and Senate have not been able to reach a compromise on their respective bills.

“I’m very disappointed that we have not yet been able to reach a compromise between the House and Senate on a version of the Fairness for High-Skilled Immigrants Act that creates the change we need and that can pass both Chambers of Congress,” she said in a press release. “But I won’t give up hope that ongoing bipartisan and bicameral talks can get us over the finish line in the next Congress. I’ll keep trying.”

On Wednesday, the American Bazaar spoke to prominent immigration attorney Sheela Murthy, founder and president of Murthy Law Firm, based in Owings Mills, MD. The interview has been edited slightly for clarity.

So let’s start with Senate bill 386 which was finally passed by the Senate earlier this month. What’s the major difference between S.386 and H.R. 1044, which was passed by the House of Representatives in July 2019?

Sure, so there’s obviously a lot of overlap between both of the bills, as you can imagine. I think there are a couple of main differences: one is where there is a per country quota cap for family-based cases. [It is] much more generous in the House bill. In fact, that was at a much higher number, like 25 percent kept aside for family-based immigration, versus the Senate bill, which only has 15 percent as the cap for family-based immigration. And another area in which I think there’s a fairly big difference was the elimination of the per country quota employment-based numbers. The House version tried to eliminate it over three years, versus the Senate version, which eliminates it over a course of nine years. But ultimately the two bills are not that far apart. So we expect that if the negotiations continue and if Trump is willing to sign it before he leaves office on January 20th, then there’s a high chance it could pass though. Of course, we are seeing a lot of pushback from certain organizations and people from other countries, who are concerned about now potential delays for their country nationals who could be stuck in very long lines.

So what are the chances then of the Senate and the House reaching a compromise before the term of the current Congress ends early next month?

You know, it depends on how much push and pull there is. I know that several organizations had pushed very, very hard for years for this bill to pass. We’ve been hearing about it coming up. [It’s been] an issue for the last, I would say, between 10 and 20 years. Also, as I said, earlier know for a fact that organizations and nationals of other countries are very concerned and alarmed that, right now if there is a zero waiting time in the EB-2 categories for those countries to get their 485s approved, they could end up having between a zero to a five-year wait to get their cases approved, their 485 adjustment of status applications approved. So they are concerned. So it depends, I guess, on who’s able to convince members of Congress because until now the organizations that have been pushing it have always said, “Hey it doesn’t impact anybody else.”  Now that this bill may become a reality, a lot of people are coming out and saying, “Whoa, whoa, just hold on a minute, I’m not very comfortable about what’s going to happen because it’s going to impact us.” Now for Indian nationals, of course, it’s a huge benefit. It’s going to cut back the times instead of 15-year, 20-year, or 30-year waiting time, it could be between zero and five-year or zero and five to ten years. So it’s a huge time differential for Indian and then Chinese, but it could certainly end up causing delays for several other countries because those extra immigrant visa numbers from employment and family-based are now going to be sort of distributed in a different methodology.

If the bills die in the current Congress, do you expect the next Congress to take it up again?

There’s a huge support, a majority in both houses, as we know, have passed the bill. The question is what is the reason for it not to get past this Congress and whether those factors that will prevent it from being finalized now, so that it can be wrapped up in this Congress, could be the same reasons why it may not again come back up because every few years we hear about it passing one or both houses. This is the first time both houses agreed to it and now I guess there’s going to be a little bit of pushback, as is to be expected with any bill that comes up anytime. Because people don’t you know, because people don’t fully appreciate it sometimes they do it for their friends or other people and then suddenly they’re like, “Whoa I didn’t know that this is the possible side ripple effect of this bill!” What is the chance of it passing it depends again on the pushback from the different parties. So you know if there’s going to be a delay now and it doesn’t pass now, I believe that those same concerns will continue through the next Congress as well.

As far as Congress is concerned, is it a done deal that the country quota should go?

No. I think nothing is a done deal. You can never take anything for granted. Until the bill is actually finalized, both houses agree on every nuance and every detail of it and it’s signed by the president, never ever, ever take anything for granted in politics, which is Rule 101, as we all know about politics in any country, in any part of the world and equally so in the great nation of the United States of America.

So in that case, do you think it will require endless negotiations in next Congress to pass a similar bill?

So if both houses actually pass it, because there’s still an overwhelming majority that are interested in pushing forth and forward with this bill, then it could very well pass because we’re very close to the finish line. Right now, the only reason that I can think is it either because they they take off time because of the holidays, Christmas break and new year’s break, if they’re taking off time and then they all rethink about it and they get a lot of pushback from their constituents, then there’s a risk that in the new Congress, they’re not going to be as excited to agree to sign it again, like the way they have with an overwhelming majority in both the House of Representatives and the U.S. Senate

Some immigrant rights groups have voiced opposition to the anti-Chinese language in S.386 saying that it’s xenophobic do you agree with that

I think the language they’re referring to [in] the bill, the per-country quota limits… the issue that they’re talking about is there is a provision in the bill which says that the U.S. Department of Homeland Security, in consultation with the U.S. Department of State, the U.S. Department of  Defense and the U.S. Department of Justice, along with members of the intelligence community, plan to create a definition of what it means to be affiliated with the military forces of the People’s Republic of China, or the Chinese Communist Party. That would then prevent or bar a Chinese national to be able to seek admission even on a tourist visa, student visa, any visa, or to file an adjustment of status and get the Green Card approval. I think people are saying that part seems unfair and discriminatory against China and Chinese nationals because almost everybody in China is required automatically, as a matter of standard policy to be a member of the Chinese Communist Party. So it almost sounds like they are saying if you’re from China and you just did what 99, or majority of the people were required to do to get a job in China, then if that would prevent you from getting your Green Card, then it seems unfair and hence it is discriminatory against Chinese. Most people are saying, multiple reports are saying that this provision would likely be stripped from any final compromise bill between both the House and the Senate.

One Comment

  1. Can’t we ask to clear backlog for India and China
    First. And cut employment based green card yearly quota to 1/2 until backlog percentage comes to accepted percentage.

    This way, we can solve backlog issue. There are 800k
    I140 approved applicants waiting for GC, can get benefit.

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