US Immigration Bill 2013 Summary – Winners & Losers and What is Changing

Last week we wrote about the Biggest 13 Issues that needed to fixed for Real US Immigration Reform. Well yesterday on April 17 an actual full Immigration Bill was released in the US Senate by one of the so-called ‘Gang of Eight’ Senators from both the Republican and Democratic parties. The full bill can be found here on the website of Charles Schumer a Democrat from New York.

So this bill is a monstrosity of legal jargon, amendments and additions to prior Immigration bills, changes in quota numbers, changes to visa conditions, additions of new visas, pathways for current illegal immigrants, etc. and all in all is almost impossible to digest unless you are a PhD in Law, US Immigration and all round Political BS.

However we will firstly summarize some of the major points of this initial proposed US Senate bill that will almost certainly change as it is debated in the US Senate let alone in the more acrimonious House Chamber before it ever has a chance of being enacted. (please note this is as correct as I am able to ascertain based on my understanding and might be subject to change)

(a) Illegal Immigrants have a pathway to Green Cards / Permanent Residency and ultimately US Citizenship

If they have been here prior to Dec 31, 2011 and have remained in good standing with the law and have paid all their taxes they will be issued a work permit. However to get to Permanent Residency Status will take 10 years, payment of about $1,000 in fines in $500 allotments over time and then the standard approximately $1,000 application fee and other process for Permanent status everyone has to follow. 3 years after attaining permanent status they can apply for US citizenship.

All this is predicated on them maintaining ongoing work status throughout the 10 years and residency in the US, continually remaining in good legal standing, paying all their taxes, knowledge of English and US Civics and otherwise obeying any current and new law forced upon them. It is not entirely within the control of the current illegal immigrant as none of the Permanent and US Citizenship status attainment is achievable unless US Border Security measures have been implemented and a full E-Verify system is in place across the US for all employers amongst other conditions.

Those who qualify under the previously submitted but yet to be approved DREAM Act (which will be part of this overall Immigration reform) which is basically US  born or young children of  illegal immigrants brought here who have completed either 2 years of military service or college can be eligible for Permanent Residency after 5 years. They also don’t have to pay the fines or be subject to some of the other conditions of other illegal immigrants.

The AgJOBS Act would also also current undocumented farm workers to obtain legal status through an Agricultural card or “Blue Card”. Their fine is smaller at $400 and if they have committed no crimes, paid all taxes and who have seen to have made ‘substantial’ contribution to working in that sector, like the DREAM Act folks will be eligible for Permanent Residency in 5 years.


(b) High Skilled Immigrants have greater access to US Employers (The H-1B Visa Changes)

Currently the cap for H-1B visa holders is 65,000 annually with a further 20,000 allocated under the Advance Degree Exemption for Foreign Students with US Graduate level degrees. This will be increased initially to 110,000 for the main cap with the Advance Degree cap to increase to 25,000 but changed to only be for STEM graduates (Science, Technology, Engineering & Math). Additionally this overall cap can go as high as 180,000 depending on a calculation of overall application petitions and the job market but can only increases or decrease by 10,000 visas per year. Additionally there is now a 60 day grace period up from 10 days for H-1B holders to be between jobs.

Also there is some confusion around this point but it is possible that spouses of H-1B visas on the H4 visa can now legally apply to work but only if a reciprocal arrangement exists for spouses with their home country for US nationals obtaining a work visa. One other reading of the bill suggests this just might be an allowance for the spouses to not be counted in the overall annual Green Card quota limits where the is a concurrent PERM application and during this time H4 visa holders can apply for an EAD.

However now the US employer must more obviously demonstrate that they have advertised the job to US workers and at this higher wage. The details of this are probably likely to be similar to what is currently done for EB-2 and EB-3 based Immigration petitions for workers to get Green Cards but one additional condition is posting og the job on the Department of Labor website for a minimum of 30 days. Additionally there are greater penalties than before for employers that are H-1B dependent in their workforce with an eventual gradual decline by 2016 to no employer have more than 50% workforce being H-1B or L-1 otherwise they are banned from sponsoring the following year.


(c) Low Skilled Immigrants have greater access to US Employers (A new W-Visa)

Other than the legalizing status for current illegal immigrants as part of the effort to reduce the chance of any future amnesty and to meet the needs of the US economy, 2 new classes of visas are going to be created, the W-1, W-2 and W-3 visas. The spouses and minor children of these visa holders will also be able to work. The W-2 visa will be for contract based and W-3 will for employment based Agricultural workers and will replace the current H-2A visa. The overall cap will start at 20,000 increasing incrementally to 75,000 over 4 years and then future caps to be determined. A W-visa holder will not be able to transfer to Permanent Residency status.

Essentially a Bureau and Commissioner will be setup and appointed by the President who will determine what occupations are in need of this type of labor and to what level and this will be constantly review and modified as needed. There we be excluded geographic locations and the employer registered and roles have to be approved. The visa holder can’t be out of work for more than 60 consecutive days but can change employers. The visa is for 3 visas and is infinitely renewable. The employer has to commit to not laying off a US worker in an 180 day period surrounding the hiring of a W-visa worker. Employers over 25 employers will have to pay a registration fee and the position will have to be fully advertised for 30 days with all terms specified.

(d) Green Card & Permanent Residency Changes

US Immigration since post World War 2 as influenced by religious and family based influence groups at the time is heavily dominated by family migration versus skilled migration. Well north of 80% of people who become Permanent Residents are coming from either Family sponsored reasons or the Green Card Lottery. There is a push with this Immigration reform to balance the permanent residents more in favor of merit based reasons that is largely skill and tenure based. This means amongst other things ending the Green Card Lottery which eliminates about 55,000 Green Cards issued annually. It will also eliminate sponsorship of siblings after 18 months of the bill being enacted for US Citizens wanting to bring foreign brothers and sisters to the US. Married children of US citizens over the age of 30 will also lose access to Permanent Residency

Up until December 21, 2000, there was a V visa available to spouses and minor children of Green Card holders so they could live and work (with an Employment Authorization Document) while their separate Permanent Residency was processing given any waiting periods. This is going to be expanded to help clear the backlog of those waiting for what is being classified as immediate family for purposes of Immigration. It should be noted there are currently approximately 1M spouses and minor children waiting outside the US for their chance to join their husband/wife/father/mother.

In terms of Employment Based Green Cards, Extraordinary ability foreigners (i.e. those who qualified under EB-1 in the past) no longer have any numerical limit imposed upon them or their spousal and minor children. There is also an addition here for foreign physicians who have completed their residency as well to be under the unlimited cap for Green Cards. After that 40% of EB-visas for Green Cards are allocated to members of professions holding advanced degrees or the equivalent experience in Sciences, Arts or Business (inc. Medical), members who have a STEM degree from a US University and an employment offer in that field where the degree was earned within 5 years of the petition being files. 40% of EB-visa for Green cards are for general professionals (i.e. what is currently EB-3 today) and maintains 10% of EB-visas each for special immigrants and those who foster employment creation (i.e. EB-5)

Additionally the Startup Visa to be know as the Invest Visa is proposed to be created to allow foreign entrepreneurs to gain access to a Green Card after a few years and meeting various criteria in terms of the business and hiring US workers.

Finally there will be a Merit Based visa which is essentially the replacement for the Green Card Lottery which would only become effective 5 years after this bill became enacted which would reward individuals with access to Permanent Residency based on their education, employment, time in US, etc. There would be 120,000 visas each year and the number would increase by 5% per year if demand exceeds supply in any year where unemployment is under 8.5% up to a maximum of 250,000 visas. For example if a foreigner currently has an Employment based petition pending for 3 years. Family petitions pending for 5 years and other long term good standing foreign workers would have access to this under the plan from October 1, 2014. This is essentially the clearing of the backlog of EB-2, EB-3 and Family sponsored visas. Between 2015 and 2023 all other backlog is planned to be cleared under a set formula.

Cj

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