After several months of negotiations, on April 17, 2013 a bipartisan group of eight U.S. senators, informally known as the “Gang of Eight, introduced long-awaited legislation for a sweeping overhaul of the nation’s immigration system. Senator Charles Schumer (D-NY) introduced the bipartisan immigration reform legislation, Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (“S. 744”), along with Sen. McCain, Sen. Durbin, Sen. Graham, Sen. Menendez, Sen. Rubio, Sen. Bennet and Sen. Flake. The Senate Judiciary Committee held hearings on the bill on April 19, 2013 and April 22–23, 2013. The bill will be “marked up” (meaning it will be debated and possibly amended and edited) in May 2013. The proponents of the bill hope to pass the bill by June 2013.
Most of the public attention has been drawn to one aspect of the 844-page bill — a legalization program for many of the nation’s estimated 11 million unauthorized immigrants. The bill provisions tilt the current legal immigration system away from its predominant emphasis on family reunification towards meeting U.S. labor market needs. While doing so, the bill would establish far greater flexibility for employers to access foreign workers if they are in need, for foreign workers to move within the labor market, and for a system to determine the number of workers admitted into the country.
Increased focus on Employment-based immigration
According to the New York Times analysis of the bill, the share of family-based immigration in the annual admission of lawful permanent residents (LPRs) would decrease from 75 to 50 percent. To that end, one of the most significant provisions is the creation of a new merit-based points system, through which 120,000 to 250,000 immigrants per year would be admitted. (This merit-based points system would replace the diversity visa program).
S. 744 proposes to create two “merit-based” immigration systems. These systems will exist in parallel with the current employment and family-based systems, as amended by the bill. “Merit-based points track one” will set aside 120,000 immigrant or permanent resident visas annually (with a possible increase up to 250,000) for individuals who can demonstrate that they have sufficient points to qualify. Points will be awarded for factors such as education, achievement, employment, family in the United States, and length of residence. Half of the points-based visas will be for high-skilled workers and half will be for lesser-skilled workers. “Merit-based track two” will be a system for allocation of immigrant visas to clear out the backlog of long-pending employment-based and family-based cases filed prior to enactment.
Other major provisions of the bill with respect to employment-based immigration:
- The bill will eliminate the per-country limits on employment-based immigration visas (green cards). This change will benefit nationals of India and China who are predominately affected by the per-country limit.
- Regarding employment-based permanent legal immigration, there would be no caps on visas granted to individuals with extraordinary ability, outstanding researchers, multinational executives, and noncitizens with Ph.D. degrees or advanced degrees in science, technology, engineering, and math (STEM) from a U.S. university.
- The spouses and children of employment-based immigrants would no longer be counted toward numerical caps.
- Foreign nationals with master’s degrees in science, technology, engineering, or mathematics (STEM) will be exempt from labor certification.
- The EB-5 Investor visa program will be permanently reauthorized, and other special programs for doctors and religious workers will also be reauthorized.
Changes proposed with respect to family sponsored immigration
- Visas for spouses and minor children of LPRs would no longer be capped.
- U.S. citizens could no longer sponsor their siblings, or their married children over 21.
- Spouses and children of LPRs will be considered to be immediate relativesand will be eligible to immigrate immediately to the United States.
- Will increase the per-country limits for family-based immigrantsfrom 7 % to 15 %.
- A new temporary visa, the V visa, will allow families with approved immigrant petitions to come to the United States temporarily while awaiting final permanent residence processing.
Changes proposed for temporary workers visa programs
- Increase in the H-1B annual visas cap starting in the 2015 fiscal year from 65,000 to 110,000 (and this could be adjusted to 180,000 over time based on the high skilled jobs demand index).
- The 20,000 cap for holders of advanced degrees from U.S. universities will be replaced with a 25,000 cap for holders of advanced degrees in STEM fields from U.S. universities.
- The bill also will impose new recruiting and non-displacement of U.S. workers requirements on all H-1B employers:
- The Immigration and Nationality Act (“INA) will be amended as: An employer, prior to filing the H-1B petition (i) has advertised the job on an Internet website maintained by the Secretary of Labor for the purpose of such advertising; (ii) has offered the job to any United States worker who applies and is equally or better qualified for the job for which the nonimmigrant or nonimmigrants is or are sought; and (iii) if the employer is an H–1B-dependent employer, has taken good faith steps to recruit, in the United States using procedures that meet industry-wide standards and offering compensation that is at least as great as that required to be offered to H–1B nonimmigrants to the United States workers for the job for which the nonimmigrant or nonimmigrants is or are sought.
- Large businesses (with over 50 employees) would be prohibited from having a workforce made up of over 50 percent H-1B workers, H-1B workers may not exceed 75% in 2015, 65% in 2016, and 50% after 2016. (The H-1B employee who is also an “intending immigrant” will not be counted in these calculations. The intending immigrant is defined as an alien who intends to work and reside permanently in the United States, as evidenced by– (i) a pending or approved application for a labor certification, filed for such alien by a covered employer; or (ii) a pending or approved immigrant status petition filed for such alien.)
- An H-1B-dependent employer will not be able to place, outsource, lease, or otherwise contract for the services or placement of an H–1B nonimmigrant employee.
- For an employer that is not H-1B-dependent, that employer would have to pay a fee of $500 per outsourced worker.
- H-4 spouses of H-1B nonimmigrants will be granted employment authorization if such spouse is a national of a foreign country that permits reciprocal employment and provides appropriate work permits.
- Deference to Prior Approvals of H-1B and L-1. This means that an extension petition filed by the same employer for an employee should not be denied unless there was a material error with regard to the previous petition approval, or a substantial change in circumstances has taken place, or new material information has been discovered that adversely impacts the eligibility of the employer or the nonimmigrant, or in the Secretary’s discretion, such extension should not be approved.
- H-1B workers would be given a 60-day grace period after H-1B employment is terminated. During this 60-day period the nonimmigrant shall retain H-1B status.
- H-1B status will continue for H-1B holders when the petition is pending to extend, change, or adjust their status.
- Visa Revalidation within United States. This rule will apply to those applicants who qualify for a waiver of visa interview and therefore are eligible for renewing their status within the United States for an H, L or O and other qualified visa.
- A new fee of $500, “STEM Education and Training fee” must be paid by the employer for a labor certification application.
- The requirements for an approval of an L-1 petition for employment at a “new office” will be scrutinized thoroughly, and the approval period may be only for 12 months and the extension of the approval may only be granted if the employer submits adequate evidence of business plan, truthfulness of representations made in prior petition, evidence that the employer has been doing business at the new office through regular, systematic, and continuous basis.
- An additional filing fee of $5,000 for an L petition for employers that employ 50 or more employees in the United States if more than 30 percent but less than 50 percent employees are on H-1B or L visas, or a filing fee of $ 10,000 for applicants that employ more than 50 percent employees are on H-1B and L visas.
- Portability, or the ability to accept employment with a new employer upon the filing of a nonimmigrant petition, will be made available to O-1 nonimmigrants.
- Will provide for E-3 visa eligibility based on Free Trade Agreements to a national of Ireland who has at least a high school education or its equivalent, or has, within 5 years, at least 2 years of work experience in an occupation which requires at least 2 years of training or experience (this is in contrast to the E-3 visa available for a national of Australia, which is reserved for individuals with bachelor’s or higher degree).
- New E-5 visa for nationals of Republic of Korea to perform services in a specialty occupation.
- E-4 visa for a national of a country, other than Chile, Singapore, or Australia, with which the United States has entered into a Free Trade Agreement.
- W visa program, a new visa category, will be available to lesser-skilled foreign workers performing services or labor for a registered employer in a registered position, except computer occupations, and will be valid for three years, with extensions available in three-year periods.
Creation of INVEST Visa Programs
- An INVEST visa program will be available for qualified entrepreneurs who plan to start their own companies in the United States and who can show that at least $100,000 has been invested by a qualified venture capitalist, a qualified super-angel investor, a qualified government entity, a qualified community development financial institution, or such other type of entity or set of investors, as determined by the Secretary, or such new business has generated no fewer than three jobs and $250,000 in revenue. The visa will be valid for three years and an extension will be granted if the entrepreneur meets certain job creation and revenue requirements.
- A green card will be available for an INVEST visa entrepreneur if he/she meet certain job creation, at least 5 jobs, and revenue requirements, at least $ 750,000, and other criteria.
The Judiciary Committee of the Senate has already made a first amendment to the bill, and there will be a number of other amendments and changes as the bill moves through Congress. We will continue to inform our clients about the proposed changes as soon as such changes are announced.
Law Offices of Rakesh Mehrotra will keep you abreast of these changes when they are actually implemented and we are available to help you navigate your way through U.S. immigration.