High-Skilled Immigration Reform Measure Promises Beneficial Changes

On January 29, the Immigration Innovation Act of 2013 (I-Squared Act) was introduced by a bipartisan group of senators, including Senators Orrin Hatch (R-UT), Amy Klobuchar (D-MN), Marco Rubio (R-FL), and Chris Coons (D-DE). The purpose of the bill is to increase U.S. competitiveness by making it easier for employers to recruit and retain highly-skilled workers.

The proposed legislation makes market-based changes to the number of H-1B visas and immigrant visas (“green cards”) available to these highly-skilled workers who currently are in short supply.

H-1B Visas

The bill increases the current number of available H-1B visas for highly-skilled workers and makes that number adjustable based on market demand. The current quota of 65,000 for new H-1Bs per fiscal year would be raised to 115,000, and could be adjusted up to 300,000 per year depending on the demand in a given year. Likewise, the H-1B cap could be adjusted downward if the baseline cap is not reached in a given year. The bill also eliminates the cap on the existing exemption for holders of U.S. advanced degrees, currently limited to 20,000 per year, and provides for spouses of H-1B visa holders to be “employment authorized.”

Employment-Based Green Cards

The proposed legislation also revises the current process for the allocation of employment-based green cards. The bill allows for the recapture of unused green cards that were approved by Congress but, due to delays, were lost. Under the bill, any unused employment-based green cards would roll over to the next fiscal year. Annual per-country limits for employment-based green cards would be eliminated and per-country limits for family-based green cards would be adjusted, depending on demand, allowing additional access to permanent residence.

In addition, certain groups would be exempt from the green card numerical limitations, namely: students who have earned a U.S. master’s or higher degree in a field on the Department of Homeland Security (DHS)-approved STEM (Science, Technology, Engineering, and Mathematics) list; dependents of principal employment-based immigrant visa recipients; individuals of extraordinary ability; and outstanding professors and researchers. Students would no longer be required to maintain “nonimmigrant intent,” i.e., they would not have to maintain a residence abroad that they have no intention of abandoning.

The I-Squared Act is one of several immigration proposals that have been introduced in recent days. The President and another bipartisan group of senators have released their own proposals for broader, comprehensive immigration reform.

Andrew W. Merrills is a shareholder in the Raleigh office of Ogletree Deakins, and he chairs the firm’s Immigration Practice Group. Lee Gibbs Depret-Bixio is a shareholder in the Columbia office of Ogletree Deakins. Nicole Brooks is the firm’s Immigration Client Resources Manager.