Imigration reform vo USA
Prezemeno od www.shusterman.com
1. Comprehensive Immigration Reform: Republicans are Split
On May 25, the Senate passed a comprehensive immigration
reform bill (S.2611) which would legalize 8-10 million
undocumented persons, establish a guest worker program,
increase immigration enforcement, raise the H-1B cap and
eliminate the family and employment-based backlogs for
those waiting in line to become permanent residents.
The Senate bill must now be reconciled with the
"enforcement-only" House bill (H.R.4437) which was passed
While President Bush, Majority Leader Frist, Senate
Judiciary Committee Chairman Specter and a host of
Republican Senators understand that a comprehensive
approach to immigration policy is needed, House Republicans
like Judiciary Committee Chairman Sensenbrenner continually
repeat "sound bite" mantras like "We must secure our
borders first." and call the Senate legalization program an
"amnesty" in disguise. What they don't seem to realize is
that the "get tough" immigration law that they passed in
1996 has been an utter failure. It is not enough to be
tough. Congress must also be smart.
House Republicans have no plan for dealing with the 10-12
million undocumented persons who reside in the U.S. What's
more, they readily admit that there is no way of deporting
them, yet they simply ignore them. Also, the House bill
fails to address needed changes in our country's broken
legal immigration system even as House members praise
persons who "play by the rules".
If the Senate-House Conference Committee fails to reach a
compromise solution, we may have no new immigration law
this year. This would be a terrible tragedy.
The following is a summary of the benefit portions of the
Senate bill, prepared by the American Immigration Lawyers
The Senate bill contains the following important
provisions, in addition to many measures that address
border and interior enforcement and create a new employment
* Path to Legal Status for Undocumented Currently in the
o Undocumented in U.S. for at least 5 years prior
to April 5, 2006 (estimated 6.7 million) eligible
for 6 years of work authorization and path to
eventual permanent legal status, upon payment of
$2,000 fine, meeting English and civics
requirement, passing background checks and paying
taxes owed. cleared
. Will get LPR status ("green card") after
current family backlogs are eliminated
. After 5 years as LPR, can apply for
o Undocumented in U.S. less than 5 but more than 2
years, (estimated 2.8 million) "Deferred
Mandatory Departure (DMD) status, providing work
authorization and eventual path to permanent
status with following requirements:
. Must leave country within 3 years, "touch
base" and return
. Can apply for readmission before departure
. Departure requirement waived for
spouses/children, or if substantial hardship
on person or immediate family
* Family Unity and Family and Employment Visa Backlog
o Those in current family backlogs will get "green
cards" before any of the currently undocumented
o New family preference cap of 480,000, adding
260,000 new visas per year to eliminate backlogs
o New employment-based cap of 450,000 for a 10-year
period, adding 310,000 new visas per year;
spouses and children of certain employment-based
immigrants capped at 650,000, others may remain
outside the cap
o 30% of employment-based cap reserved for
o Provisions for widows, orphans, and lower
threshold for affidavits of support
* High-Skilled Immigration Reforms
o Reform of student visa rules to authorize dual
intent, expand the period of OPT, and create a
direct path to permanent status for certain
advanced degree students
o Increase in H-1B cap to 115,000 with market-based
escalator and exemption for STEM advanced degree
o Exemptions for the annual employment-based cap
for STEM advanced degree holders, aliens of
extraordinary ability, and outstanding professors
* New Temporary Worker Program with Labor Protections
and Path to Permanent Status
o New program for 200,000 new temporary "essential"
workers per year
o 3 year visa, renewal for 3 years, with
portability to work for employer of choice
o Current undocumented who entered U.S. after
January 2004 are eligible, must leave country to
apply, 3/10 year bars are waived
o Employer has to seek U.S. worker first; labor
protections and market wage requirements
o Can apply for permanent status ("green card"),
within the new employment-based cap; can self-
petition if worked for 4 years, otherwise
employer can petition
* Reforms to Agricultural Worker Program
o Farm workers who show that they performed at
least 150 days of agricultural work in the U.S.
during the 24 month period ending December 31,
2005 can get temporary resident status ("blue
card"); spouse/minor kids get status too
o To earn permanent status ("green card"), farm
workers must perform agricultural work for at
least 100 work days per year for 5 years, OR
perform 150 days per year for 3 years.
Participants may work outside agriculture but
only if they are continuing to meet the annual
agricultural work requirement.
o The earned legalization program has a cap of 1.5
o The H-2A temporary foreign worker program will
allow employers in the dairy industry to hire
workers even when they are year-round workers.
* Path to Legal Status for Undocumented High School
Students (DREAM Act)
o Students who enter U.S. before age of 16 and are
present for 5 years preceding date of enactment,
and who have graduated from high school (or GED),
can apply for 6-year conditional status
o Within 6 years, if they graduated from college or
completed two years in a degree program, or
served in Armed Forces, conditional status
becomes permanent status ("green card")
We link to both the Senate and the House bills as well as
to the "Manager's Amendment" to the Senate bill from our
"Immigration Legislation" page at
The following two topics address proposed changes in the
employment-based immigration system, and in the H-1B
numerical caps. In future newsletters, we will detail the
proposed changes in the family-based immigration system
(e.g., how the Senate proposes to eliminate the family-
based backlogs in six years, and items of interest to
particular communities - for example, sons and daughters of
naturalized Filipino World War II veterans would no longer
be subject to numerical quotas.)
2. Proposed EB Immigration System Changes in the Senate Bill
The Senate bill would make the most wide-ranging and beneficial
changes to the employment-based (EB) immigration system since the
Immigration Act of 1990.
* Present Employment-Based (EB) Categories
Presently, there are five EB preference categories: (1) Priority
workers; (2) Professionals Holding Advanced Degrees and Persons of
Exceptional Ability; (3) Skilled Workers, Professionals and Other
Workers; (4) Special Immigrants; and (5) Investors.
Each of the first three categories is allocated 28.6% of the worldwide
total of 140,000 visas annually while both the 4th and 5th preference
categories are allotted 7.1% of the worldwide total. In addition,
unused numbers from certain categories are available to other
categories when the demand exceeds the supply of numbers.
Unlike the H-1B petition cap, spouses and children are counted toward
the EB numerical caps.
In May 2005, a law was enacted which "recaptured" 50,000 immigrant
visas to be used by those in Schedule A occupations (Registered Nurses,
Physical Therapists and Persons of Exceptional Ability). The State
Department estimates that these 50,000 visas will be completely
expended between October and December of this year.
* EB Preference Categories under the Senate Bill
For an overview of the changes to the EB categories made by the Senate
bill, see our article entitled "Reform of the Employment-Based
Preference System" in the April 2006 issue of SHUSTERMANS' IMMIGRATION
In May, the Senate passed 27 additional amendments to the comprehensive
immigration reform bill, some of which impact the EB system.
The EB quota would be increased from 140,000 to 450,000 until 2017, at
which time, it would fall to 290,000.
A last-minute amendment by Senator Bingaman (R-NM), approved by a vote
of 51-47, introduced a wild card into the system. This amendment would
impose a "hard cap" of 650,000 on the number of workers/persons who
could immigrate in a single fiscal year under the EB system. It is
still unclear whether spouses, children and other cap-exempt workers
would be included under the hard cap. If so, the amount of backlog
reduction in the bill would be significantly reduced. This is because
200,000 of the EB visas are reserved for H-2C guest workers and their
We believe that the Senate bill would significantly reduce current EB
backlogs. However, if the Bingaman amendment remains in the final
bill, the granting of many of the 348,000 applications for labor
certification pending in the Backlog Elimination Centers could again
result in backlogs developing in the EB categories.
* Other Important Changes
Since 2000, certain persons in H-1B status have been permitted to
extend their nonimmigrant status beyond 6 years if (1) their
applications for labor certification or their immigrant visa petitions
were pending for one year or more, or if (2) their immigrant visa
petitions were approved, but their priority dates were not current.
The Senate bill provides that persons in L status would also be able to
extend their nonimmigrant status, in one-year increments, beyond the
maximum duration currently permitted by current law (5 years for L-1Bs
and 7 years for L-1As), but only if they have pending applications for
adjustment of status. This is important for section 245(k) purposes
since, under USCIS' interpretation of this statute, only a person in
nonimmigrant status (or one who has been in such status within 180 days
of his most recent admission to the U.S.) qualifies to apply for
permanent residence under this section of law. If you are working
using an EAD or have been paroled into the U.S., and your application
for adjustment of status is denied, even for reasons beyond your
control, you may be forced to depart the U.S., and may not be able to
return to the U.S. in L status for one year. Therefore, should this
provision be enacted into law, we advise persons to extend their L
status until their applications for adjustment of status are approved.
Another important provision in the Senate bill would allow certain
large employers to be "pre-certified" so that they would not be forced
to submit certain documentation about themselves with each and every
The Senate bill would authorize the USCIS to permit premium processing
for immigrant EB petitions.
Senator Specter's Manager's Amendment to the bill would change the
immigration system in a number of important ways too numerous to list
here. For example, in EB adjustment of status applications, work
permits (EADs) and travel permits (APs) would be issued in 3-year
Among the many important changes mandated by the Manager's Amendment
are those which apply to the Department of Labor (DOL). Prevailing
wage determinations would be required to be to be issued by DOL (not
the SWAs) within 20 days, pending applications for labor certification
would be decided within 180 days (beginning 90 days after the law's
enactment) and BALCA appeals of denied labor certificates within 60
We have posted the Manager's Amendment online at
Another amendment to the Senate bill would take 33,000 immigrant visas
normally reserved for the Visa Lottery, and reallocate them to visa
applicants with advanced degrees in science, technology, engineering
and mathematics (STEM).
One of the most important changes would allow persons with approved EB
immigrant petitions to submit applications for adjustment of status
(along with a $500 fee) even if their priority dates are NOT CURRENT.
This change would benefit all EB applicants, whatever their
nonimmigrant status, as well as persons who are out-of-status, but who
would eventually become eligible to submit applications for adjustment
of status under section 245(i).
All of the most recent amendments to the Senate bill (S.2611) will soon
be incorporated into the government's online version of the bill which
we link to from our "Immigration Legislation" page at
3. Proposed Changes to the H-1B Category in the Senate Bill
The comprehensive immigration reform bill passed by the Senate on May
25 would make significant changes in the present H-1B visa system.
Please keep in mind that these changes are not yet written into law.
The Senate bill must still be reconciled with the House bill, and
signed into law by President Bush.
* The Present Law
Presently, there is a numerical limit for H-1B (professional) workers
of 65,000 per fiscal year (October 1 - September 30). Employers are
permitted to submit H-1B petitions 6 months in advance, or by April 1
each year. During the past two months, well over 50,000 H-1B petitions
subject to the cap were received by the USCIS. This means that the
65,000 cap will be reached sometime within the next few days, thereby
rendering U.S. employers incapable of sponsoring additional H-1B visa
holders until October 1, 2007.
There is also a 20,000 per year H-1B cap reserved for persons who hold
advanced degrees in the U.S. As of today, this cap is only 30% used
up, meaning that these H-1Bs will probably be available until the
beginning of the next fiscal year.
The USCIS posts a chart on its web site regarding the number of H-1B
petitions which are received subject to the 65,000 and 20,000 caps.
This chart is updated twice each week. We link to this chart from
Certain H-1Bs are exempt from both numerical caps. These include
persons applying for H-1B extensions of stay, change of employers,
persons who had H-1B status during the past six years, failed to use
their full six years and whose employers are petitioning for H-1B
status on their behalf.
Also exempt from the H-1B caps are persons employed by universities,
by nonprofit entities which are university-affiliated or related, and
those employed by governmental or nonprofit, research organizations.
If you are maintaining valid nonimmigrant status, you may change your
status to H-1B without having to leave the U.S. However, if you must
travel abroad, you will not be able to re-enter the U.S. unless you
apply for an H-1B visa at a U.S. Embassy or Consulate in your home
country, although it is sometimes possible to obtain H-1B visas in
Canada or Mexico.
* Changes Proposed by the Senate Bill
The Senate bill would raise the 65,000 H-1B numerical cap to 115,000.
If the numerical cap is reached, the following year's cap would
automatically increase by 20%.
The Senate bill would also make major changes in the 20,000 H-1B cap.
The 20,000 cap would apply to persons holding advanced degrees from
foreign institutions of higher learning while persons holding advanced
degrees from U.S. institutions would be exempt from the cap. This
change would result in more than doubling the number of advanced degree
holders who are able to obtain H-1B status annually. In addition,
those persons who have been awarded "medical specialty certification
based on post-doctoral training and experience in the United States"
would also be exempt from the H-1B cap. This change would allow
physicians who have completed residencies and/or fellowships in the
U.S., and who have become board-certified, to obtain H-1B status
without regard to the numerical caps.
The Senate bill would restore the ability of H-1B visa holders (and
holders of certain other types of nonimmigrant visas - E, I, L, O and
P) to renew - or "revalidate" - their visas by mail in Washington, D.C.
rather than having to leave the U.S. to do so.
The exemption from the H-1B caps for employees of non-profit research
organizations would be expanded to include employees of all non-profit
organizations, whether or not these organizations engage in research.
The sum total of these changes would make H-1B status a much more
useful category, and would enhance our workforce by allowing U.S.
employers to hire more of the best and brightest professional workers.
We hope that the Congress will approve such changes for employers and
employees who "play by the rules" without the extended debate that we
expect to ensue regarding the legalization and guest workers provisions
of the Senate bill.
Follow our "Immigration News Ticker" and "U.S. Immigration News" at
for day-to-day news about the negotiations between the Senate and the
Also, follow our "Immigration Legislation" page at
in case "stand alone" legislation relating to the employment-based
immigration system is introduced in Congress.