Immigration Legislation in the Lame Duck Session? Yes

Tuesday, October 23, 2012 - 09:30

Once the hard-fought Presidential and Congressional elections are over and winners have been declared, attention will rightfully focus on the new Congress (and perhaps Administration) that will take office in January. President Obama and Governor Romney presented voters with divergent plans for immigration reform, and Congress is likely to take up immigration at some point within the next four years.  But before the 113th Congress begins, legislators will return for a lame duck session that presents an excellent opportunity to pass immigration legislation. With several significant pieces of legislation now pending in Congress, all on issues with substantial bipartisan support, conditions are more favorable than not for some long-awaited action on immigration.

The lame duck period has historically been an important time for immigration reform.  In fact, major components of our current immigration system were established through legislation that was a product of a lame duck Congress.  In December 1990, Congress enacted the Immigration Act of 1990 (IMMACT), which made significant changes to the then-existing immigration system.  And the Immigration Reform and Control Act of 1986 (IRCA) – the federal law that granted limited amnesty and for the first time prohibited employers from hiring unauthorized workers --was passed in November of that year.

This year, proposals to create a new green card category for foreign nationals with U.S. advanced degrees in science, technology, engineering and math (STEM) fields and a proposal to eliminate country quotas on employment-based immigrant visas stand more than a fair chance of positive action before the end of 2012.

STEM Legislation

Proposals to ease the green card path for foreign nationals with U.S. advanced degrees in science, technology, engineering and mathematics (STEM) enjoy broad bipartisan support. Republicans and Democrats alike agree that a STEM visa category is necessary to retain highly skilled U.S.-trained foreign nationals to power scientific and technological innovation and increase U.S. global competitiveness.

STEM proposals have been introduced from both sides of the aisle.  All would create a new green card category for foreign graduates holding U.S. master’s degrees or Ph.D.’s in STEM fields, but there is key divergence on mechanics.  Democratic proposals – including Sen. Chuck Schumer’s (D-NY) “Benefits to Research and American Innovation through Nationality Statutes” (BRAINS) Act  and Rep. Zoe Lofgren’s (D-CA) “Attracting the Best and Brightest Act” (ABBA) – would add 50,000 new immigrant visas specifically for STEM advanced-degree graduates.  In contrast, House Immigration Subcommittee Chairman Lamar Smith’s (R-TX) recently defeated STEM Jobs Act would have eliminated the Diversity Visa Program and reallocated its 55,000 visas to STEM grads. Though the House of Representatives in September failed to pass Smith’s bill – largely due to disagreement over the fate of the diversity program and to procedural rules that require a two-thirds majority for legislation on suspension motion  – the measure won a majority made up of members on both sides. Thus, there is every reason to believe that STEM legislation can – and will – pass if the well-deserved new STEM visas are created rather than deducted from existing visa categories.  After all, Congress hasn’t added new visas in over 22 years.

Legislation To Eliminate Country-Specific Green Card Quotas

Another bill under consideration is the “Fairness for High-Skilled Immigrants Act,” H.R. 3012, also sponsored by Chairman Smith, which would eliminate country-specific quotas in the allocation of employment-based green cards.

Under current law, no more than 7 percent of the total number of employment-based green cards may be allocated annually to the natives of any single country. Thus, when there are more applications for employment-based green cards than available green cards for a specific country, foreign nationals must wait in line for a visa to become available in years following; this is commonly known as the “visa backlog.” As a result, nationals from countries with high rates of employment-based immigration, such as China and India, are subject to multi-year waits – in some cases as long as a decade or more -  for an employment-based green card to become available. (According to the State Department’s latest projections, professionals and skilled workers from India face waits of ten years, while those from China can expect a wait of more than six years.) H.R. 3012 would eliminate the separate queues for each country in favor of a single worldwide queue and equalized waiting periods for each employment-based green card category.

H.R. 3012 easily passed the House of Representatives but was on hold in the Senate due to objections from Sen. Charles Grassley (R-IA).  As a condition of lifting his hold, the Senator attached an amendment that would grant the Department of Labor (DOL) greater power to investigate and enforce compliance with rules concerning the H-1B nonimmigrant visa program (which has nothing to do with immigrant visas and visa backlogs).  Notwithstanding Grassley’s efforts to stop H.R. 3012 unless it contains the enhanced DOL enforcement provisions, the bill has garnered much support in certain segments of  the corporate community - particularly those in technology which employ many Indian and Chinese engineers - because it would dramatically shorten the wait times for green cards of those currently facing lengthy immigrant visa backlogs.  There are, however, other employers who oppose the legislation on the ground that giving more to those subject to the longest backlogs (Indians and Chinese) would simply increase (and in some cases create for the first time) backlogs for nationals from other countries.  This is why so many have proposed the solution of adding more visas generally, and especially in the STEM fields.

Although the upcoming lame duck session will likely be dominated by budget negotiations – so that America does not fall “off the cliff” on December 31, 2012 - legislative history suggests that the session could also prove productive in terms of immigration legislation. Given the bipartisan support for several immigration proposals, there is reason to be optimistic. STEM legislation and legislation to equalize or otherwise improve the waiting time for employment-based permanent residence would bolster U.S. competiveness and strengthen the U.S. economy by providing American employers with the skilled workers they need.


Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at Brendan Cranna, a law clerk, and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit