Imigration reform vo USA |
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| DJ_SHEMA | 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 last December. 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 Association (AILA): The Senate bill contains the following important provisions, in addition to many measures that address border and interior enforcement and create a new employment verification system: * Path to Legal Status for Undocumented Currently in the United States 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 citizenship 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 Relief 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 "essential" workers 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 holders o Exemptions for the annual employment-based cap for STEM advanced degree holders, aliens of extraordinary ability, and outstanding professors and researchers * 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 million. 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 http://shusterman.com/toc-leg.html#6D 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 UPDATE at http://shusterman.com/apr06.html#1 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 families. 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 petition. 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 increments. 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 days. We have posted the Manager's Amendment online at http://shusterman.com/cir-mgr.html 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 http://shusterman.com/toc-leg.html#6D 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 http://shusterman.com/toc-h1b.html#3 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 http://shusterman.com/ for day-to-day news about the negotiations between the Senate and the House. Also, follow our "Immigration Legislation" page at http://shusterman.com/toc-leg.html#6D in case "stand alone" legislation relating to the employment-based immigration system is introduced in Congress. |
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