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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.