Immigration Reform 2013—Update

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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In the February/March 2013 issue of the Immigration eAuthority, we outlined the respective proposals for immigration reform put forward by both the President and a bipartisan group of eight senators. We also noted that numerous new stand-alone business immigration bills have recently been announced, including the Immigration Innovation Act of 2013 (I-Squared Act). We have outlined the latest immigration reform developments below.

Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 

On April 17, 2013, the Senate “Gang of Eight” introduced the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 in the Senate. Key provisions of the bill are summarized below.

H-1B High-Skilled Visas

The bill calls for increasing the annual base cap for skilled worker H-1B visas from 65,000 to 110,000. This number may increase to a maximum cap of 180,000 depending on labor demands and the rate of unemployment. The current 20,000 exemption for U.S. advanced degree holders is amended to be a 25,000 exemption for advanced degree graduates in science, technology, engineering, and mathematics (STEM) from U.S. schools. The bill also includes provisions to ensure that increased numbers of skilled immigrants do not displace U.S. workers, including preventing such workers from undercutting U.S. wages by requiring that employers pay significantly higher wages to H-1B workers than under current law and requiring that jobs first be advertised to U.S. workers before hiring H-1B workers. The four wage levels used to determine the prevailing wage level under current law would become a three-tiered wage system, the effect of which is to increase the prevailing wage level for H-1B employees at each level. The Department of Labor (DOL) is given expanded authority to review labor condition applications (LCAs) and to audit H-1B employers.

The new legislation provides spouses of H-1B workers with work authorization if the sending country of the worker provides reciprocal treatment to spouses of U.S. workers. The Senate bill also establishes a 60-day transition period for H-1B workers to change jobs. In addition, employers with large numbers of H-1B workers (“H-1B dependent employers”) are required to pay significantly higher salaries and fees. H-1B dependent employers are prohibited from outsourcing H-1B employees, while non-dependent employers are required to pay a $500 fee for each outsourced H-1B worker.

L-1 Intracompany Transferee Executive/Manager Visas

Among various other provisions, the Senate legislation prohibits L-1 outplacement unless the other employer is a related entity of the petitioner; the L-1 employee would not be principally controlled or supervised by the other employer; the placement is not essentially a labor for hire arrangement; and the other employer attests that it has not displaced and will not displace a U.S. worker for 90 days before or after the date of filing. Similar to restrictions proposed for H-1B employees, the bill limits sponsorship of L-1B specialized knowledge nonimmigrants for certain high-volume H-1B/L-1B employers, and proposes increased enforcement measures for the L-1 visa program and stricter overall review processes and penalties for employers that violate program rules.

Legal Immigration

Among other provisions, the bill repeals the Diversity Visa Program and eliminates family-based immigrant visas for siblings of U.S. citizens. In addition, the bill exempts the following employment-based immigrant visa (“green card”) categories from the annual numerical caps: derivative beneficiaries of employment-based immigrants; all foreign nationals in the EB-1 category (foreign nationals of extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; and multinational executives and managers); doctoral degree holders in any field; certain physicians; and holders of a U.S. master’s degree or higher in a STEM field earned in the five years preceding the filing of an immigrant visa petition, provided they have a job offer in a field related to the degree.

The Senate legislation creates a startup visa for foreign entrepreneurs who seek to immigrate to the United States to start up their own companies. After five years, the bill establishes a point system for a new “Merit Based Visa,” which will award points based on education, employment, length of residence in the United States, and other considerations. Those individuals with the most points earn the visas. 120,000 visas will initially be available per year based on merit. This figure may increase depending on demand and rates of unemployment, but it will be capped at a maximum of 250,000 visas.

Overall, the bill increases the percentage of employment visas for skilled workers, professionals, and other professionals to 40 percent of all employment-based visas.

“W Visa” Program for Lower-Skilled Workers

The Senate legislation creates the “W visa,” a new nonimmigrant classification for foreign workers in low-skilled jobs. Beginning in 2015, the annual cap for W visas is 20,000 for the first year and increases to 75,000 by the fourth year. For each year after the fourth year, the annual cap will be calculated according to a statistical formula taking into account various factors.

Employment Verification

U.S. companies must implement the enhanced E-Verify employment verification system over a five-year phase-in period to prevent unauthorized workers from obtaining employment in the United States. Employers with more than 5,000 employees will be phased in within two years. Employers with more than 500 employees will be phased in within three years. All employers, including agricultural employers, will be phased in within four years. All non-citizens will be required to show a "biometric work authorization card" or "biometric green card."

Border Security

The bill will appropriate $3 billion to improve border security through surveillance drones, additional border patrol and customs agents, and fortified fencing.

To achieve the goal for border security, "high risk sectors along the Southern border" (defined as border sectors along the border with Mexico where the number of apprehended illegal crossers exceeds 30,000 individuals per year) must be kept under constant surveillance. Additionally, within five years after the bill has been enacted, the Department of Homeland Security (DHS) must achieve an “effectiveness rate” of 90 percent or higher for all such high risk sections. “Effectiveness rate” is defined as the number of apprehensions and turn backs in a specific sector divided by the total number of illegal entries.

If the prescribed effectiveness rate is not met, a border security commission, comprised of governors and border security experts, will be appointed to issue recommendations regarding the manpower, technology, and resources needed to achieve the required metrics. The bill will appropriate additional funds for DHS to implement these recommendations.

Path to Earned Legal Residency for Undocumented Immigrants

The bill introduces two statuses on the pathway to legal residency: Registered Provisional Immigrant (RPI) and Lawful Permanent Resident (LPR). Neither is attainable until border security preconditions have been met, with the exception for DREAM Act-eligible youth and certain agricultural laborers. Border security must have been established via criteria laid out in the legislation. These include verification of the security of “high risk border sectors along the Southern border,” as well as implementation of certain measures by DHS, including a mandatory employment verification system to prevent unauthorized workers from obtaining employment in the United States and an electronic exit system at air and sea ports of entry to determine whether foreign nationals overstay their visas.

Once the border is certifiably secure, undocumented immigrants may apply to adjust their status to RPI legal status if they meet certain eligibility criteria namely:

  • Residence in the United States prior to December 31, 2011 and maintenance of continuous physical presence since then; and
  • Payment of a $500 penalty fee (except for DREAM Act-eligible students), and assessed taxes and fees.

Foreign nationals ineligible to adjust to RPI status include those convicted of an aggravated felony, felony, or three or more misdemeanors; those convicted of an offense under foreign law; those who have unlawfully voted; and those inadmissible for criminal, national security, public health, or other morality grounds.

Once the applicant qualifies for RPI status, he or she may work for any U.S. employer and is free to travel outside the country. After 10 years, a foreign national in RPI status may adjust to LPR status by following the same guidelines as other immigrants to earn a green card provided: he or she has maintained continuous physical presence, paid all taxes owed during the period in RPI status, worked in the United States regularly, and demonstrated knowledge of Civics and English; all people currently waiting for family and employment green cards as of the date of the bill’s enactment have had their priority date become current; and a $1,000 penalty fee is paid. DREAM Act youth can obtain green cards in five years and will be eligible for citizenship immediately thereafter.

Note: This article was published in the April/May 2013 issue of the Immigration eAuthority.

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.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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