10 Things We Like in the Senate's Comprehensive Immigration Reform Bill

by Protima Daryanani

It’s been decades since the last major immigration reform bill and now after many delays the most recent bill (S. 744) is slowly moving forward.

It was introduced in the Senate on April 16, 2013, by Senator Schumer of New York and was referred to the Committee on the Judiciary.  S. 744 as amended passed the Senate on June 27, 2013 by a vote of 68-32.  The bill will now be considered by the House of Representatives. Any number of things can happen now including a complete rejection of the bill.  There is unfortunately a strong sense that the House of Representatives will not pass a comprehensive reform bill but rather address certain areas of immigration in a variety of other bills. And it is almost certain that the bill will change if and when it is sent to the president. Notwithstanding any future changes, though, here are ten things we like in the current bill and hope survive in the final version of immigration reform:

The bill allows for undocumented immigrants currently in the United States to show they are eligible to legalize their immigration status and eventually obtain U.S. citizenship. Under the Registered Provisional Immigrant (RPI) program, undocumented immigrants will be able to apply for RPI status if they have been in the U.S. since December 31, 2011 and have not been convicted of a felony or three or more misdemeanors. They will also have to show that they pay taxes, pass background checks, pay application fees, and a $1,000 penalty (which may be paid in installments), among other requirements. Applicants must also be admissible under current law, which excludes individuals who have committed certain offenses, participated in terrorist acts, or belong to other excluded categories. Spouses and children of RPIs will also be eligible. The status is good for 6 years initially and renewable for 6 years.  RPIs who have been lawfully present for 10 years before becoming legal permanent residents will be able to apply for U.S. citizenship after maintaining permanent resident status for 3 years. Therefore, undocumented immigrants who legalize via the RPI track will have to wait at least 13 years to become citizens. A version of the DREAM Act has also been incorporated into the RPI program to address the special situation of many undocumented immigrants who entered the U.S. as children. DREAMers, however, are placed on a more accelerated path to permanent legal status and citizenship.

Under Track 1 of the merit-based point system, between 120,000 and 250,000 foreign nationals will be allowed to obtain lawful permanent residence status  in the United States by accumulating points. Unfortunately, the current immigrant visa categories for siblings and adult married children of U.S. citizens, as well as the diversity visa program, will be eliminated and replaced by this system. The system will be divided into two tiers: tier one visas will be designated for higher-skilled immigrants with advanced educational credentials and experience; tier two visas will be reserved for less-skilled immigrants. The allocation of points in both tiers is based on a combination of factors, including education, employment, occupation, civic involvement, English language proficiency, family ties, age, and nationality. For example, 15 points are allotted for a doctoral degree, 3 points for each year of work experience in a highly-skilled job, 10 points for being an entrepreneur, and 8 points for being under the age of 24. The system prioritizes immigrants who are young, educated, experienced, skilled, and fluent in English. Family ties and regional diversity are given less importance. Ten points of a total of 100 are assigned based on family ties, and 5 points are given to nationals of countries with low immigration to the United States.

Under Track 2 of the Point system, those who have been backlogged under the current system, either under a family-based application or an employment-based application will have a path to lawful permanent residency. Starting in 2015, the goal is to allocate visas for these individuals over a 7-year period so that the backlog is cleared by 2021. In addition, the track 2 merit-based system makes visas available to RPIs who have maintained that status for at least 10 years.

The limits on immigrant visas for nationals of countries such as China, India, and the Philippines will be eliminated. This will allow applicants from these countries equal access to the available employment-based visas. Although the annual worldwide cap on employment-based immigrant visas will remain at 140,000 per year, highly skilled and very talented immigrants, including immigrants of extraordinary ability, multinational executives, graduates of U.S. universities with advanced degrees in STEM fields (fields of study in the categories of science, technology, engineering, and mathematics) and physicians who fill special medical needs such as working in medically-underserved areas, will be exempt from the cap. Spouses and children of employment-based immigrants will also be cap exempt, which means that each of the 140,000 visas allocated will go to an applicant hired for a job.

The bill will raise the current annual H-1B visa cap of 65,000 to a cap that fluctuates between 115,000 and 180,000 based on a formula known as the “High Skilled Jobs Demand Index” that considers employer demand and unemployment data. The bill will also make it easier for H-1B workers to change employers and give the spouses of H-1B workers work authorization if the spouse is a national of a foreign country that permits reciprocal employment to spouses of those receiving work statuses similar to an H-1B in the spouse’s country. Laid off H-1Bs (or those terminated for any reason) will get a 60 day grace period from the termination date. Applicants who then file a new H-1B petition will be deemed to have maintained status while that petition is pending.

The X visa will be for entrepreneurs whose businesses have attracted at least $100,000 in investment, or have created no fewer than three jobs during a 2-year period prior to the application and generated $250,000 in annual revenue. This will be a temporary non-immigrant visa that is granted for 3 years. The bill also creates and EB-6 investor immigrant visa that leads to Lawful Permanent Residence. This will be for entrepreneurs who have a significant ownership in a U.S. business and have had a significant role in the start-up of the business. The business must have created at least five jobs and must have received at least $500,000 in venture capital or investment, or created five jobs and generated $750,000 in annual revenues in the prior 2 years.

The bill will make the following non-immigrant visa categories dual intent: E, F-1, F-2, H-1B, H-1C, L, O, P, V, or W. This means that foreign nationals in those categories coming to the U.S. are allowed to have the intent to stay either temporarily or permanently. 

Foreign nationals 55 and over who do not work, who have health insurance, and have $500,000 to buy a residence in the U.S will be eligible for a non-immigrant visa. The Y visa will be issued in 3-year increments and will not include work authorization. There will also be a provision for a Canadian retiree tourist visa that will allow Canadians age 55 and over with a residence in Canada to enter the United States for up to 240 days.

The O-1 will now be “portable” which will allow a foreign national in O-1 status to start working with a new employer as soon as a new petition is filed. The O-1 will no longer have to wait for the petition to be approved to begin employment. The bill also states that union and peer consultations will be valid for 3 years (currently 2 years) from the date they were obtained. It’s not clear if spouses of O-1s (O-3s) will receive work authorization.

Similar to the Australian E-3, the bill provides for an E-4 visa for those from countries other than Chile, Singapore, or Australia with which the US has entered into a free trade agreement. Like the E-3, the E-4 application must be accompanied by an offer of employment in a specialty occupation and a Labor Condition Application (LCA). There is a cap of 5,000 per year (not applicable to spouses and children). There is also an E-5 for South Koreans and an E-6 for people from Sub-Saharan African countries with similar requirements.

The W nonimmigrant visa will be for less-skilled, non-seasonal, nonagricultural workers, such as workers in janitorial and hospitality industries. (There is also an agricultural worker W visa.)  W workers will be admitted for a 3-year period, renewable for an additional 3-year period, and must work for registered non-agricultural employers in registered positions. The program will be supervised by the Bureau of Immigration and Labor Market Research, a new government entity which will designate shortage occupations. The annual W visa cap for registered non-agricultural positions will fluctuate between 20,000 and 200,000, and employers must pay the W workers the actual wage or the prevailing wage for the occupation, whichever is higher. The cap for the construction industry will be 15,000.

And a bonus item which will make all our lives so much easier:

Having been unable to do so for the past 11 years, foreign nationals will again be able to get a new visa stamp put into their passports in the US. Foreign nationals will be able to only renew a visa in the same classification they already have. The bill states that visas will be renewable in the US in the following non-immigrant categories: A, E, G, H, I, L, N, O, P, R and W.