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Senator Richard Durbin Introduces RELIEF Act, Would Eliminate All Employment-based Green Card Backlogs in Five Years

October 31st, 2019 Kyle Behring

The RELIEF Act – Eliminating Employment-based Green Card Backlogs in Five Years

On Wednesday October 16th, 2019, Senator Richard Durbin (D-IL) introduced a new bill in response to the blocked bill S. 386, the Fairness for High-Skilled Immigrants Act of 2019. Senator Durbin’s Bill, S.2603, Resolving Extended Limbo for Immigrant Employees and Families Act or the “RELIEF” Act seeks to eliminate backlogs for Employment-based green cards and Family-based green cards, remove dependent beneficiaries from being counted towards annual visa allowances, and add additional child age-out protections to ensure visa applicants’ unmarried children under 21 remain eligible to receive visa benefits derived from their parent’s application even in the face of long processing times and visa backlogs. The bill in its entirety can be accessed here.

Currently 226,000 family-based Green Cards and 140,000 employment-based green cards are available to be issued annually. Senator Durbin’s bill proposes to increase the number of available visas. Advocating for his bill on the senate floor he state, “One of the most serious problems in our broken immigration system is that there are not nearly enough Green Cards available each year. As a result, immigrants are stuck in crippling backlogs for many years. The solution to this backlog is clear: increase the number of Green Cards. I’m proud to introduce this commonsense legislation to finally eliminate the family and employment Green Card backlog.”

Pointing to the immense supply-demand imbalance, he said, “America, at its core, is a nation of immigrants, but too often our outdated immigration laws close doors to those who would make enormous contributions to our communities and economy. The mismatch between the supply and demand for Green Cards has left millions of immigrant families in legal limbo, stuck in a years-long backlog waiting for the chance to contribute to our nation.”

How Would This Bill Affect EB-5 Investors?

The bill introduces three major fixes to the broken permanent residence visa issuance process that have plagued EB-5 investors.

The most pertinent of which is the allocation of additional green cards to all employment-based green card categories. The bill seeks to entirely eliminate backlogs for all employment-based green card categories by allocating each fiscal year from 2020 to 2024 “a number of immigrant visas equal to 1⁄5 of the number of aliens described in such subsection the visas of whom have not been issued as of the date of the enactment of this Act”, eliminating the existing backlog for employment-based category green cards.

Additionally, the bill will exempt spouses and minor children from being counted towards annual the visa allowance cap, allowing three to four times as many visas to be issued for each category each year. Currently dependent beneficiaries of employment-based green card applicants are counted towards the annual visa caps and are a major contributing factor to the extensive backlogs for China, India, and Vietnam. With just this provision alone, assuming there is an average of 3.5 visas issued per EB-5 application (one visa for the petitioner, one for their spouse, and 1.5 for the children of the petitioner), the current estimated backlog for India (about 4,700 pending applications) could be eliminated in about 2.7 years, which is about the same amount of time as the low end of the current I-526 processing time estimate provided by USCIS.

Finally, additional protections will be provided to the children of employment-based permanent residence applicants. Currently the Child Status Protection Act (CSPA) “freezes” a dependent beneficiary child’s age at the time of the petitioner’s application for permanent residence. For EB-5 applicants, the child’s age “freezes” when petition I-526 is submitted and remains “frozen” until their I-526 petition is adjudicated. However, retrogressed EB-5 petitioners must wait until their priority date becomes current before they are able to apply for Adjustment of Status or Consular Processing. In turn, this means that there is a gap between I-526 approval and Adjustment of Status / Consular Processing where the age of the dependent beneficiary child of EB-5 petitioners “unfreezes” and they face the risk of no longer being eligible for green card benefits derived from their parent’s application. Once the dependent beneficiary child’s age is over 21 years (minus the time petition I-526 spent processing), they are considered to have “aged out” of the visa benefits. Under the legislation proposed by Senator Durbin, the determination of whether the dependent beneficiary children of employment-based green card petitioners satisfy the age requirement will be made using the age of those children at the time the petition is filed.

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