News

For the first time in many years, Congress has been trying to agree on a comprehensive immigration reform act that will allow approximately 11 million undocumented aliens to pursue a path to US green cards and citizenship. The Act, known as the “Border Security, Economic Opportunity and Immigration Modernization Act of 2013”, has been approved in the Senate, which is the more liberal part of Congress. However, the bill (or some version of it) must also be approved in the House of Representatives, which is much more conservative, and the bill is likely to have a difficult time. In any event, the idea of comprehensive immigration reform has gained more momentum in 2013 than at any time in the past decade.

The Senate Bill

In addition to legalizing undocumented aliens, the Senate bill (S.744) includes border security, and workplace enforcement measures, plus immigrant and nonimmigrant provisions. Most significant for employers are pro visions that will expand both nonimmigrant and green card opportunities, while at the same time, impose new fees, restrictions and other requirements. Certain key provisions affecting skilled professionals are listed below:

The H-1B Cap:  includes a higher H-1B cap of 115,000 and a formula that will allow for quota increases of 5,000 to 20,000 within a fiscal year if demand exceeds the cap and the unemployment rate for managerial, professional and related occupations is less than 4.5 percent. The maximum quota increase would be 180,000.  The advance (masters) degree exemption would be raised from 20,000 to 25,000, but limited to STEM graduates.

There are several other new provisions in the bill that would affect H-1B wages, employers with a high volume of H-1B workers and work authorization for H-1B spouses. Fees for employers would increase from $1500 to $2500 and $1250 for employers with 25 or fewer employees. This is in addition to existing fees.

L-1 Provisions; some restrictions on outplacement of L-1’s, additional fees (same as H-1B); and new fees for high volume L-1B employers.

Green Card provisions:  the employment-based immigrant visa quota of 140,000 would be increased during the first years of the law to clear the long green card backlogs by using thousands of unused immigrant visas that were recaptured from fiscal years 1992 – 2013. In addition, the bill would exempt certain categories of employment-based immigrants from the annual quota, including all EB-1 cases, foreign nationals with a US doctoral degree or foreign equivalent degree plus those with a US master’s degree or higher in a STEM field earned in the 5 years preceding filing for the green card with a US job offer in a field related to the degree. Also, the bill permits filing for adjustment of status before a visa number is available on the waiting list.

Labor Certification:  The bill provides for exemption from the labor certification requirement for STEM graduates.  Where a labor certification is required, the bill establishes a new fee for employers of $1,000 per labor certification.

The House Bill

The bill in the House of representative has not yet been passed.  However, a version of the bill has been approved by the House Judiciary Committee.  One of the provisions of the House bill would include benefits for high-skilled labor, known as the SKILLS Visa Act which would expand nonimmigrant opportunities for skilled workers.  The bill would allocate additional immigrant visas (green cards) to foreign nationals who graduate US universities with advanced degrees (masters or higher) in STEM fields (science, technology, engineering and math). It would also increase the standard H-1B cap to 155,000, with 40,000 more numbers for advanced degree STEM graduates.  It would further repeal employment-based per-country limits on green cards (such that all countries will be part of one quota).  The House version of the bill would also make major changes to many parts to it that will affect the ability of several different groups to gain immigration benefits with regard to permanent residence as well as nonimmigrant employment visas.