Historic Immigration Bill Passes Senate but House May Have Its Own Agenda

by Sheppard Mullin Richter & Hampton LLP

Vice President Joe Biden presided over a historic session as the Senate passed its immigration reform bill, the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744), last Thursday, June 27, 2013. The White House blog noted, “The Senate’s passage of the bill was immediately met with support from bipartisan leaders and a broad spectrum of groups across the country – from Democrats to Republicans, business to labor leaders and clergy.” In fact, the bill itself was a culmination of efforts exerted across party lines, industries, trade unions, associations and other unaffiliated groups. The bill moves us a bit closer to the possibility of fixing a broken and dysfunctional immigration system and employers should plan to watch what happens in the House over the next few weeks and take part in the discussion by contacting their Congressional representatives.


Lauded by supporters for providing a path to residency for some of the estimated 11 million undocumented immigrants currently living in the U.S., the bill also addresses border security. The undocumented immigrants will be required to undergo a rigorous registration process that will offer Registered Provisional Immigrant (RPI) status, putting them at the back of the immigrant visa waiting line but allowing them to stay in the U.S. while they wait. These individuals will pay back taxes and undergo background checks. However, as part of a compromise in the Senate, certain milestones must be met before any of the RPIs may adjust their status to that of a legal permanent resident (“green card” holder). Those milestones include the Department of Homeland Security (DHS) certifying a 90% effectiveness in apprehensions and returns along the United States-Mexico border, having a phased-in E-Verify program in place, increasing the number of border patrol agents, and completing additional border fencing. Specifically employers nationwide will be required to use the E-Verify program determine the work eligibility of their employees. The Border Patrol force will be nearly doubled with the addition of 20,000 agents. Security will also be increased with the construction of 700 miles of border fencing and the implementation of several high-tech security measures at the border and in airports.

Highlights of S. 744 for Employers

Non-immigrant (temporary visas)
The legislation increases visa caps in multiple categories but at the same time adds more restrictive guidelines for certain categories including the L-1 visa. Changes to the H1-B (professional worker) visa program, include an immediate increase in the visa cap from 65,000 per year to 115,000 for the first fiscal year after the date of enactment and then increases up to 180,000 depending on market demand. A nice perk added is open work authorization for spouses of H-1B workers provided we have a reciprocity agreement in place. The bill also increases fees and limits the number of overall H-1B and L-1 visa holders a company can hire. For those following the guest worker debate, the W visa category may provide relief to employers. The W visa will provide from 20,000 to 200,000 visas for low-skilled nonagricultural workers that would fluctuate yearly. Also, a new agricultural worker visa program would allow certain existing agricultural workers to receive residency after continuing to work in the industry for five more years. Another new nonimmigrant investor visa, the X visa, will target entrepreneurs who raised at least $100,000 in investment, or who created no fewer than three jobs during a two-year period prior to the application and generated $250,000 in annual revenue.

Immigrant (Permanent Residence)
The future immigration portion of the bill establishes a merit-based point system that awards points to immigrants with educational credentials, work experience, and other qualifications. It also recaptures unused visas. This will augment, not replace, the current employment and family based categories. Physician access should be increased, as the J-1 visa waiver for those who work in medically underserved areas is made permanent. The EB-5 classification benefited from a few tweaks including exempting spouses and children from the 10,000 annual cap, designating Targeted Employment Areas for a five year period and allowing for concurrent filing of an investor petition and an adjustment of status application for investors who are already in the U.S. in a valid non-immigrant status. The bill also creates a companion to the EB-5 visa, the new EB-6 immigrant investor visa category. This visa will allow entrepreneurs to obtain permanent residency if they have a significant ownership in a U.S. business and have had a significant role in the start-up of the business. The immigrant’s investment must create at least five jobs and must receive at least $500,000 in venture capital or investment, or create five jobs and generate $750,000 in annual revenues in the prior two years.

What is Next?

While the bill’s passage through the Senate was a victory for immigration reform supporters, the bill still has a long battle ahead before being implemented into law. The White House and the Gang of Eight are urging the House to adopt the bill, but it is already facing significant resistance from House members who are currently working on their own immigration bill. House Speaker Boehner stated that the House will continue working on the immigration bills they originated and already have in committee. In response to questions about whether the Senate bill would pass through the House Boehner responded, "The House is not going to take up and vote on whatever the Senate passes. We're going to do our own bill, through regular order."

If the House and Senate pass the same bill, then it will be sent to the President to be signed into law. However, based on the Speaker’s statements it is likely that the House Judiciary Committee will first take up the immigration legislation and the Senate’s bill will not be immediately adopted. If the House and Senate pass different bills, then the bills will be sent to Conference Committee. Like most major legislation, it is likely that the immigration bill will go to a Conference Committee to work out a compromise and memorialize it in a conference report. That report must then be approved by each chamber. Only then can President Obama be given the opportunity to sign comprehensive immigration reform into law. It will be important to watch the timing as Congress adjourns for August recess. Observers are concerned that immigration reform will lose momentum as Congress may be preoccupied with other items and focused on the upcoming mid-term elections when they return. It is important for employers to review the highlights of the bill, as well as the carve outs and the possible amendments. It is critical for employers to become an active part of the dialogue by contacting their representatives to ensure their concerns and requests are included in the debate.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Sheppard Mullin Richter & Hampton LLP | Attorney Advertising

Written by:

Sheppard Mullin Richter & Hampton LLP

Sheppard Mullin Richter & Hampton LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.