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On April 16, 2013, the Senate’s “Gang of Eight” introduced the “Border Security, Economic Opportunity, and Immigration Modernization Act,” an 844 page piece of legislation which is the Senate’s starting point for Comprehensive Immigration Reform (“CIR”). So, what’s actually in the “Gang of Eight’s” 844 page bill?
Here’s a primer.
1. Legalization. This is perhaps the most controversial provision of the bill. The bill provides that non-citizens who are in the United States unlawfully, and who entered the U.S. before December 31, 2011, may apply to become a Registered Provisional Immigrant (“RPI”). Those who are eligible would be required to pay a penalty along with any and all back taxes due and owing. They would also receive permission to work (and they would be permitted to travel abroad). They would also become eligible to apply for their Green Card after ten (10) years. Three (3) years after that, they can apply for naturalization (i.e., citizenship).
2. H-1B Nonimmigrants. The H-1B nonimmigrant visa / status is granted to a foreign national who will perform services in a specialty occupation. The bill will increase the available yearly quota to a minimum of 110,000 nonimmigrant visas, and a maximum of 180,000. The bill will also increase the U.S. advanced degree exemption to 25,000, but will limit the issuance of visas under this exemption to “STEM” graduates (i.e., science, technology, engineering, and math graduates).
The bill also proposes to add a recruitment requirement for all H-1B labor condition applications (which are required to be certified by the U.S. Department of Labor as part of the H-1B process). With respect to the H-1B category, this is (for the most part) very new (and I suspect will not be very popular with employers who use the H-1B program).
On the positive side, the bill also proposes to provide employment authorization for spouses and, on a technical point, adds a 60-day grace period after an H-1B worker has been terminated from his or her job.
3. Employment-Based Green Cards. Employment-based immigration is organized in what is called a “preference” system which has annual quotas. The total number of employment-based “Green Cards” available in the U.S. government’s fiscal year is 140,000. The bill proposes to exempt the following categories from the annual quota: aliens of extraordinary ability, outstanding researchers and professors, multinational executives and managers, doctoral degree holders, physicians who have completed their foreign residency requirement, and with respect to all of them, their spouses and children. The bill also adds a new employment-based Green Card category for certain entrepreneurs.
4. Family-Based Green Cards. Family-based immigration is also organized in a “preference” system which also has annual quotas. The total number of family-based “Green Cards” available in the U.S. government’s fiscal year is 226,000. The bill proposes to merge the FB-2A preference category (related to spouses and children of Green Card holders) into the immediate relative classification (where there is no quota), allow for derivatives of immediate relatives, eliminate the FB-4 category (related to siblings of U.S. citizens), cap the age of eligibility of married sons and daughters of U.S. citizens at thirty one (31), and reinstate the V nonimmigrant visa (related to spouses and children of Green Card holders).
5. Nonimmigrant (Temporary) Workers: Temporary workers typically are in the United States on “nonimmigrant” visas (like the H-1B). The bill proposes to create a “W-1” nonimmigrant visa for lesser-skilled workers, a “W-2” nonimmigrant visa for foreign nationals coming to the U.S. temporarily to perform agricultural services or labor under a written contract, and a “W-3” nonimmigrant visa for “at-will” workers with an offer of full-time employment in an agricultural occupation. (The W-2 and W-3 visas would replace the current H-2A agricultural worker program.)
6. Political Asylum: Political asylum may be granted by U.S. Citizenship and Immigration Services (“USCIS”) or an Immigration Judge to foreign nationals who have been persecuted or fear they will be persecuted on account of their race, religion, nationality, and/or their membership in a particular social group or their political opinion. The bill proposes to eliminate the current one-year filing deadline for applying for political asylum. It also proposes to authorize asylum officers to grant political asylum during “credible fear interviews” (i.e., interviews of foreign nationals who affirmatively apply for political asylum upon entering the United States). These would both be welcomed changes.
7. E-Verify: E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States. The bill proposes to require all employers to use the system after five (5) years.
8. Fraud: The bill proposes to make it a crime to knowingly defraud an immigrant or hold oneself out as an attorney or Board of Immigration Appeals (“BIA”) accredited representative when one is not authorized to do so. This is another very welcome change. The bill also proposes to require the identification of individuals who assist aliens with the completion of forms.
There’s more… a LOT more, actually. These are the “big ticket” items, and at least some of them will create a lot of discussion within the halls of Congress over the coming weeks (and perhaps months). The bill is not perfect, but it is a very good start.
“Now is the time.” That’s what President Obama said on January 29, 2013 in Las Vegas, Nevada when he introduced his four (4) part plan for Comprehensive Immigration Reform. The four principles that the President feels should guide the overhaul of our immigration laws are as follows:
2. Strengthening accountability for businesses that break the law by undermining American workers and exploiting undocumented workers;
3. Strengthening our economic competitiveness by creating a legal immigration system that reflects our values and diverse needs; and
4. Creating accountability from those people who are living in the United States illegally.
I think the President’s quote should have been “It’s about time.” Our immigration system is broken, and it’s been broken for a very long time.
I “enjoyed” my first taste of our immigration system when I started working for U.S. Sen. Alfonse D’Amato in the 1980’s. Back then, constituents would call, both individuals and HR professionals for companies doing business in New York, complaining, e.g., that they could not get their relatives into the United States for a visit, or there were delays processing their company’s H-1B worker petition either at legacy-INS or the Department of State. Eventually, the primary company complaint in the 1990’s was that there weren’t enough H-1B nonimmigrant visas to go around. (Sound familiar?)
In those same conversations, I would no doubt hear about all the “illegals” that were streaming across our border, or hanging out on Westchester street corners waiting to be hired for day jobs. (I’m not picking on Westchester, but I was working in Sen. D’Amato’s New York City office at that time and a lot of my calls came from that area.)
In 1997, I went into private practice, focusing the majority of my practice on immigration and nationality matters. Although the times have changed, the issues have not. In fact, they’ve gotten worse. Much worse.
The Department of Homeland Security (including the three agencies that make it up – U.S. Citizenship and Immigration Service, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection) is an enormous agency. The U.S. Department of State is pretty big too. To be fair, I’ve met many people over the years who work at these agencies who are good people and who do exceptional work. But the system within which they work, and which we are stuck with, is very much broken.
Just before the President’s announcement, a group of U.S. Senators offered some guiding principles for comprehensive immigration reform. President Obama followed suit a couple of days later with the four principles noted above. Thus far, we’ve heard a lot of dialogue, both for and against comprehensive immigration reform, as one might expect (and in this author’s opinion, some good and some not so good). We’ve seen little yet in the form of actual legislative proposals.
In the House, Congressman Mike Honda (D-CA) introduced the “Reuniting Families Act,” which contains provisions for reducing family immigration visa backlogs and promoting timely reunification of immigrant families. Specifically, the bill includes provisions that would (a) ensure that immigration visas are allocated efficiently, (b) alleviate lengthy wait times that keep legal immigrants and their families separated for years, and (c) decrease measures that prevent family members from obtaining visas. The bill also includes other provisions, such as eliminating discrimination in immigration law against same-sex, permanent partners and their families who are seeking to reunite.
In the Senate, on March 18, 2013, Senator Grassley (R-IA) and Senator Sherrod Brown (D-OH) introduced the H-1B and L-1 Visa Reform Act of 2013. The jury’s still out on this proposed legislation, but at first glance, if passed without change, the H-1B and L-1 nonimmigrant visa programs will have some big changes (e.g., requiring that all companies make a good faith effort to hire Americans first, requiring prospective H-1B employers to list available positions on a Department of Labor sponsored website for a period of 30 days prior to petitioning for foreign labor, etc.). Companies that regularly use the H-1B visa program will no doubt not like these provisions.
It will be interesting to see the politics of all this as immigration in general, and reform in particular, has become the “third rail” of politics. But reform – well thought out reform – is absolutely necessary.