A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Tuesday, April 16, 2013

Highlights of Senate's new Comprehensive Immigration Reform Bill

The U.S. Senate finally releases its version of a Comprehensive Immigration Reform (CIR) bill today.  The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 proposes to reform many aspects of the current immigration policy, including the creation of a new Registered Provisional Immigrant Status (RPI) for the undocumented immigrants. The prerequisite is that the border must be secured first before any RPI petition will be approved. The following are the highlights of the most important proposed changes:

Family-sponsored Immigration

  • Reduce the current four family preference categories to two categories only: Unmarried adult children (of U.S. citizens); married adult children (of U.S. citizens) who file before age 31, and unmarried adult children of lawful permanent residents. 
  • Lawful permanent residents will be able to petition for their spouses and minor children (currently F2A) without regard to visa numbers – just like U.S. citizens can do now.
  • The current F4 preference category will be eliminated 18 months after the law is enacted – meaning that U.S. citizens will no longer be able to petition for their brothers and sisters.
  • The Diversity Visa Program (“Visa Lottery”) will be eliminated after FY2014.
Employment-sponsored Immigration

  • Spouses and children of EB applicants will no longer use up visa numbers – meaning that a lot more employment-based visa numbers will be freed up for use!
  • All employment first preference categories will also be exempt from the annual visa limits including EB-1A Extraordinary Ability Aliens, EB-1B Outstanding Researchers and Professors, and EB-1C Multinational Company Executives and Managers 
  • Doctorate degree holders and some physicians will also be exempt from the annual visa cap.
  • Also exempt from visa quota are individuals with a master’s degree or higher in a STEM (science, technology, engineering or mathematics) field from an accredited U.S. institution and have an offer of employment in a related field and the qualifying degree was earned in the five years immediately before the petition was filed. (Current EB-2 STEM applicants.)
  • The annual employment-based visa limit will be allocated as follows:
  • The Bill will create a startup visa for foreign entrepreneurs to startup their own companies.
  • A Merit-Based Visa (MBV) program will be created in the 5th year after law was passed.  Similar to the Canadian system, the MBV awards points to individuals based on their education, employment, length of residence in the US and other considerations. Annual quota will be 120,000 visas, which can be increased by 5% per year if demand exceedssupply in any year where unemployment is under 8.5%. The total number of visa will be capped at 250,000.
  • The MBV can also be used beginning on October 1, 2014 for employment-based visas that have been pending for threeyears, family-based petitions that were filed prior to enactment and have been pending for five years, long-term alienworkers and other merit based immigrant workers.
  • Based cap will be raised from  65,000 to 110,000.
  • For U.S. advanced STEM degree holders, cap will be raised from 20,000 to 25,000.
  • In future years, the cap can go as high as 180,000 based on a demand index.
  • Spouses of H-1Bs will be allowed to work if their country of origin allows spouses of U.S. citizens to work.
  • A 60-day transition period will be allowed for H-1B workers to change jobs.
  • Dual intent visas will be created for all students who come to the U.S. to pursue a bachelor’s or higher degree.
  • H-1B dependent employers will have to pay significantly higher wages and fees than normal users of the program.
  • The job must be posed online for 30 calendar day before an H-1B petition can be filed.
  • The “amnesty” part of the proposal allows folks in unlawful status to adjust their status to the legal status of Registered Provisional Immigrant Status. (RPI)
  • Eligibility Criteria:
  • Spouses and children, if already in the U.S., are also allowed to apply.
  • Immigrants in RPI status can work for any employer and travel outside of the United States.
  • Those who were present in the U.S. before December 31, 2011 but were deported for non-criminal grounds may also apply, if their parent, spouse or children are U.S. citizens and/or legal residents.
  • RPI status shall last for a 6-year term that is renewable if the immigrant does not commit any acts that would render thealien deportable.  Another $500 penalty fee is due.
  • After 10 years, aliens in RPI status may adjust to Lawful Permanent Resident Status through the same Merit Based Systemeveryone else must use to earn a green card if they maintained continuous physical presence, paid all taxes, learn English and Civics, etc.
  • A new visa program for foreigners to work in low-skilled jobs in the U.S.
  • Both the employer and the position must be registered.
  • Spouses and minor children will also be allowed to come for the same duration and authorized to work.
  • Workers must not be inadmissible, have no criminal background, and agree to accept only registered positions in the US.
  • Approved for three (3) years initially, and extendable for another three (3) years.
  • Employers must pay market wages.
  • Each registered position must be posted for 30 days first on the internet.
  • There will be annual visa caps beginning April 1, 2015

-        Professionals holding advanced degrees or their equivalent whose services are sought in the sciences, arts, professions, or business by an employer in the United States (including certain aliens with foreign medical degrees), and individuals with a master’s degree or higher in a STEM (science, technology, engineering or mathematics) field from an accredited U.S. institution and have an offer of employment in a related field and the qualifying degree was earned in the five years immediately before the petition was filed. (40%)
-         Skilled workers, professionals, and other professionals. (40%)
-         Special immigrants (10%)
-        Employment creation or investor visa (10%)

H-1B Program

Legalization Program for the Undocumented Immigrants
-        Residence  in  the  U.S.  prior  to  December  31,  2011  and  maintenance of continuous physical presence since then;
-        Paid a $500 penalty fee (except for DREAM Act eligible students), and assessed taxes, per adult applicant in addition to all regular fees;
-        Have not been convicted of an aggravated felony, a felony, or 3 more misdemeanors, or an offense under foreign law; unlawfully voted; or found inadmissible for Criminal, National Security, Public Health, or other morality grounds.

 W Visa - Temporary Work Program

(Note: The above is only a proposal and has no legal effect until it is signed into law.)

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