A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration lawyer. We serve clients in all U.S. states and overseas countries. (All information is not legal advice and is subject to change without prior notice.)

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Friday, February 26, 2021

Biden's Immigration Plan has been Introduced by Congress




The U.S. Citizenship Act of 2021, a major policy initiative of President Biden, has been formally introduced in both the Senate and the House last week.  The full text of the proposal is 353 pages long.  It is a comprehensive plan that touches on all major aspects of the immigration system.  

The part about providing a path to citizenship for the undocumented gets most of the headline attention.  A good portion of the proposal is actually devoted to reform legal immigration. The following is a summary:  

  • Recaptures from previous years unused immigrant visa numbers in both family-based and employment-based categories for current use.
  • The number of immigrant visas allocated to immediate relatives from the previous year is no longer deducted from the annual visa quota.
  • The annual cap of employment-based immigrant visas is increased from 140,000 to 170,000.
  • Reclassify spouses and minor children of lawful permanent residents as immediate relatives (thus making them no longer subject to the annual visa cap).
  • Spouses and children will no longer be counted against employment-based numerical limits in the employment-based visa categories (thus indirectly increasing the number of employment-based immigrant visas by a few multiples) . 
  • The current per-county limit of immigrant visa allocation will be raised from 7% to 20%.
  • Cancel the 3-year and 10-year bars for individuals who have been unlawfully present in the U.S.
  • Death of the petitioner or a principal applicant will no longer terminate the related immigration petition.
  • Fianc├ęs of U.S. citizens and their children will be allowed to apply for adjustment of status without going through the K-1 visa or immigrant visa.   K-2 children will no longer age out.
  • An immigrant visa applicant will retain the earliest priority date of any petition, regardless of the visa categories. Hence, an employment-based applicant may retain the priority date of a previously-filed family visa petition.  
  • Graduates of accredited U.S. PhD programs in STEM fields will no longer be subject to the employment-based immigrant visa limits, making visa numbers immediately available to them. 
  • Similarly, applicants and their dependents with approved I-140 petitions with priority dates older than 10 years will no longer be subject to the employment-based immigrant visa limits, thus making green cards immediately available to them.
  • AC-21 one-year extension will be extended to other visa categories (F-1, O-1, L-1) once their labor application or I-140 petition has been pending for 365 days or longer.
  • An additional 30,000 employment-based immigrant visa numbers will be allocated to the EB-3 Other Worker category (unskilled workers with less than 2 years training, education, or experience). 
  • DHS is allowed to allocate H-1B visas based on the level of wages offered by employers. (Similar to Trump's wage ranking rule).
  • The F-1 visa will be converted to be a “dual-intent” nonimmigrant visa category (and hence F-1 students will no longer be required to prove intention to return home.)
  • Allow H-1B workers to extend status beyond the normal six-year limit until their adjustment of status (I-485) has been processed in the EB-1, EB-2, or EB-3 category.  H-4 children will not age out if H-4 status was initially granted before the age of 18.  A child's age in EB categories is frozen on the date when the labor application or I-140 petition was filed. 

It is important not to rely on the details of this initial proposal yet.  The Senate and the House must first agree on a final version before it can be sent to the President for signature.  Due to the controversial nature of immigration issues, extensive debates and compromises are expected before a final version can be agreed on. 

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