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Immigration Reform


US Senate Passes Immigration Reform Bill (S. 744)

Earlier this afternoon the U.S. Senate voted 68-32 in favor of final passage of S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act” which seeks to provide a comprehensive immigration reform.    We have provided an overview and analysis of S.744 when it was introduced in the U.S. Senate on April 16, 2013 and we urge our readers and clients to review the main points of S. 744.   Our clients and readers can also refer to the full text of S.744, as it was passed earlier today.

Hold the Champagne:   Senate Passage is  an Important but Early Step in Legislative Process

While S. 744 is not perfect in many ways, we are pleased to see the US Senate pass a comprehensive reform bill.   However, it is important to underscore that this proposal would become a law in its current shape only after an identical bill is passed by the US House of Representatives and then signed by President Obama.    The House has indicated that they would not vote on this bill and would instead take a deliberate approach to draft their own version of an immigration reform.   This process can take months to complete and much can happen during this time.

Conclusion

We are very happy to be finally able to share some concrete developments on the proposal for a comprehensive immigration reform.   After the Senate vote, we expect a lot of activity and focus on the US House of Representatives over the next days and weeks and we will monitor closely and report on any substantial developments on immigration reform.   Also, we will be conducting a series of live chats and webinars to discuss and analyze this proposal, in its current form and as it may be amended before it becomes law.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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2013 CBO Report on Immigration Population in the United States

Yesterday, May 8, 2013, the Congressional Budget Office (“CBO”) released an updated report to Congress analyzing the current immigration population in the United States.   The report is interesting not only in the context of the ongoing debate on the proposed Comprehensive Immigration Reform (CIR) bill which is currently in Congress but also to get a current glimpse of the trends of composition of the immigrant population in the United States.   We are happy to provide  a summary of the report findings.

Size and Composition of the Foreign-Born Population

In 2012, about 40 million foreign-born people lived in the United States, making up about 13 percent of the U.S. population—the largest share since 1920. The number of immigrants was about the same in 2011, the latest year for which certain data on immigrants are available. Of that total in 2011, naturalized citizens (foreign-born people who have fulfilled the requirements for U.S. citizenship) accounted for about 18 million, and noncitizens (foreign-born people authorized to live and work in the United States either temporarily or permanently and people who are not authorized to live or work in the United States) accounted for about 22 million. About half of the noncitizens were people without authorization to live or work in the United States, either temporarily or permanently.   See chart.

In 2011, about 37 percent of foreign-born people in the United States were from Mexico or Central America; the next-largest group came from Asia and constituted about 28 percent of the total foreign-born population.  Of noncitizens unauthorized to live in the United States, an estimated 59 percent were from Mexico, and an estimated 14 percent were from El Salvador, Guatemala, or Honduras.   See chart.

Lawful Permanent Residents

From 2000 to 2012, more than 13 million people were granted lawful permanent resident (LPR) status in the United States, an average of about 1 million per year. Lawful permanent residents are permitted to live, work, and study in the United States, and receiving LPR status is an important milestone on the path to U.S. citizenship. Roughly two-thirds of new LPRs were immediate relatives of U.S. citizens or were admitted under family-sponsored preferences.

Demographic Characteristics of the Foreign-Born Population

In 2012, about 1 in 4 people in California and about 1 in 5 people in New York and in New Jersey were born in another country. However, in another 31 states, taken together, only about 1 person in 20 was foreign born. See chart.

Between 1999 and 2012, the share of the population constituted by foreign-born people increased in all but two states and, for the nation as a whole, rose by 2.8 percentage points, to roughly 13 percent.   See chart.

Level of education is somewhat less, on average, among foreign-born people than among native-born people, and it varies considerably depending on immigrants’ country of origin. In 2012, 27 percent of the foreign-born population between the ages of 25 and 64 had not completed high school, compared with 7 percent of the native-born population. More than half of the people from Mexico and Central America, 54 percent, had not finished high school, but only about 9 percent of the people from Asia and 5 percent of the people from Europe and Canada had less than a high school education. In addition, about 55 percent of the people from Asia had at least a bachelor’s degree, as did 51 percent of the people from Europe and Canada; just 33 percent of the native-born population had earned at least a bachelor’s degree.   See chart.

Labor Market Characteristics

An interesting analysis focused on the ability to seek/find employment and on the salaries received by various segments of the immigrant population.   For example, foreign-born men are more likely to be working or looking for work (that is, to be
in the labor force) than are native-born men; foreign-born women, however, are less likely than native-born women to be in the labor force.

The differences in educational attainment and participation in the labor force (as well as in groups’ concentration in particular occupations) were reflected in differences in annual earnings. The amount and distribution of annual earnings were similar for naturalized and native-born citizens, but earnings tended to be much lower among noncitizens. The amount of annual earnings among foreign-born workers also varied greatly by their country of origin. For example, in 2011, the median annual earnings of male workers from Mexico and Central America was $24,000—whereas among male workers from Asia, the median was $50,000; among their counterparts from Europe and Canada, it was $55,000; and among native-born male workers, $46,000. Among female workers from Mexico and Central America, median annual earnings were $17,000—whereas among their counterparts from Asia, the median was $30,000; among those from Europe and Canada, it was $35,000; and among native-born female workers, $32,000.

Conclusion

The CBO report is very interesting as it raises some questions with respect to the demographics and labor market participation of the individuals who would be covered under the proposed CIR.   Also, this report is likely to be used by all sides in the CIR debate as to why certain parts of the proposed reform should be kept or changed, depending on the political standpoint of those making the argument.

We continue to monitor closely developments in Congress related to Comprehensive Immigration Reform and we expect a lot of activity over the next days and weeks.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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Senate Immigration Reform Proposal Released: Summary and Analysis

Many of our clients and readers are aware that the U.S. Congress here in Washington, DC has been working on a comprehensive immigration proposal over the past few months.     Until today, there have been many proposals, a lot of discussion and even more rumors as to what may or may not be included in a comprehensive immigration proposal.  Today, the so-called “Gang of Eight” U.S. Senators have released their proposal for an immigration reform — The Border Security, Economic Opportunity and Immigration Modernization Act of 2013 — and we finally have some actual and detailed proposal to share with our clients and readers.

Update (April 17, 2013):  the full text of the proposed legislation has been made available.

Please note that at this point, this is only a proposed legislation and is not the law.

Summary of the Proposed Immigration Reform

The Border Security, Economic Opportunity and Immigration Modernization Act of 2013 deals with a number of immigration issues:

  • Family Visa (Green Card) Program.   Allows unlimited number of immigrant visas per year for spouses, children and parents of U.S. citizens and permanent legal residents.   Eighteen months after enactment of the law, eliminates immigrant visas for foreign brothers and sisters of US citizens, and married children over 30 years of age.  Backlog to be eliminated.
  • Employment Visa (Green Card) Program.  Backlog targeted for elimination.  Derivative beneficiaries (spouses/children) will be exempt from the annual visa numerical limits.  Also, exempt will be extraordinary ability, outstanding professors/researchers, multinational executives/managers, Ph.D. holders and certain physicians.  Increased allocation for EB-2 and recent U.S. STEM Master’s degree holders.
  • Startup Visa (Green Card) Created.  The proposal would create a startup visa for entrepreneurs who seek to emigrate to the U.S. to start their own company.
  • Merit Based Visa (Green Card) Created.  After five years, a new merit-based visa will be created and would allocate green cards based on points awarded on the basis of education, employment, length of residence in the US and other factors.   120,000 visas available per year, with annual adjustments.
  • H-1B Cap, Salaries and Fees Increases; H-1B Dependent Employers.   The H-1B cap will double to 110,000 with the possibility of adjustments of the cap of up to 180,000 per year.  The minimum H-1B salary will increase and the fees paid by H-1B employers will be increased.   Employers will see limits on how many H-1B workers they can have.
  • Guest Worker Program.  Establishes a new visa program for 20,000 foreigners in low-skilled jobs starting in 2015.   The number of visas increases to 75,000 in 2019.   A new federal agency will analyze employment date to make adjustments on the cap – with a maximum of 200,000 annually.   Construction companies will be limited to no more than 15,000 per year.   There is also a “safety-valve” to allow additional visas in excess of the annual cap provided employers pay workers higher wages.
  • Farm Worker Program.   Visas for agriculture workers (including those who are without authorization) would be made available and wages will have to be based on survey of labor-market data.  The H-2A program will be eliminated once the new W-2 or W-3 program is operational.
  • Diversity Visa (Green Card) Lottery.   To be eliminated in 2015.
  • Path to Citizenship.   Most of the 11 million people who are in the country without authorization would be able to apply for a green card after 10 years and for citizenship three after that.   Applicants must pay a fine, pay back taxes, learn English and pass background check.   The cutoff date for eligibility is December 31, 2011.   Dream Act youth can obtain green cards in five years and citizenship immediately thereafter.
  • Border Control and E-Verify Required.   The Department of Homeland Security will receive funding to improve border security with drones, agents and fencing.   US companies must implement the E-Verify employment authorization system which ensures that workers are legal residents within five years.   All non-citizens will be required to show “biometric work authorization card” or “biometric green card.”   A new entry/exit tracking system will be implemented at ports to better track foreign visitors who overstay their visas.

Family and Employment-Based Immigrant Visas

The proposed immigration law will substantially revise the current family- and employment-based immigrant visa (green card) system.  It will aim to eliminate the current (significant) backlog in most of the immigrant visa categories and then, in five years, introduce a merit-based immigrant visa.

Family-based.

Out of the four family-based preference categories (which have annual limit of 480,000), two will be eliminated and the eligibility for the rest will be revised.   Under the new bill, there will be two family-based categories and they will cover unmarried adult children; married adult children who file before age 31, and unmarried adult children of lawful permanent residents.   The V visa will be expanded to allow individuals with approved family petition to reside in the US and other family members to visit the US for up to 60 days per year.

The bill removes immigrant visas for siblings of U.S. citizens (in 18 months after the bill is enacted) and amends the definition of “immediate relative” to include a child or spouse of an alien admitted for lawful permanent residence.  Also, the existing category for married sons and daughters of U.S. citizens is amended to include only sons and daughters who are under 31 years of age.

Employment-based.

The new bill will exempt the annual numerical limitations the following categories:  derivative beneficiaries (spouses/children) of employment-based immigrants; aliens of extraordinary ability, outstanding professors/researchers; multinational executives and managers; Ph.D. degree holders in any field; and certain physicians.  Currently, all of these categories are counted under the annual numerical limits and, as a result, are slowing down the approval of the immigrant visas for everyone else.

Forty percent of the employment-based immigrant visas will be allocated to what are now considered to be EB-2 workers with the addition of recent (the five years before petition is filed) U.S. master’s degree holders in a STEM field.

Additionally, an increased allocation (forty percent) of the annual employment-based limit will be allocated to skilled workers, professionals and other professionals.  The limit to immigrant visas for special immigrants will be ten percent and visas for those who foster employment creation (entrepreneurs/job creators) will also be limited to ten percent.

The bill would also create a startup visa for foreign entrepreneurs who seek to emigrate to the U.S. to start their own companies (and presumably create jobs).

Merit-based.

The merit-based immigrant visa will be created in the fifth year after enactment of the proposal and would award points to applicants on the basis of education, employment, length of residence in the US and other factors.   The applicants with the most points would be granted the merit-based immigrant visa.   The annual limit would be set at 120,000 and the number would increase by 5% per year if demand exceeds supply in any year, assuming the U.S. unemployment rate is under 8.5%.  The cap cannot exceed 250,000 per year.

Until the merit-based program starts (five years after enactment), the government will allocate the visa numbers to employment-based applicants who have been pending for more than three years, family-based petitions filed prior to enactment and pending for more than five years, long-term immigrants (those who have been in the US for 10 years).  In other words, the government will use these numbers to decrease the current backlog in the employment and family immigrant visa categories.

H-1B Visa Reformed – Cap and Fees Will Increase; H-4 Spouses May Work; Additional Requirements on H-1B Employers

Cap Increase.

The H-1 work visa program is set to be revised substantially.  The H-1B cap will be doubled from 65,000 to 110,000 per year, with the U.S. master’s cap amended to include only U.S. master’s degree holders in STEM fields and with the cap for such holders increased to 25,000 per year.   The H-1B cap will be adjusted annually, depending on demand and can go as high as 180,000 per year (but with maximum annual adjustment of 10,000).

H-1B Fees.

The H-1B fees will increase substantially, for some (mostly H-1B dependent) employers.  If an employer has 50 or more employees and more than 30% but less than 50% are H-1B or L-1 employees (who do not have a green card petition pending), the employer must pay a $5,000 fee per additional worker in either H-1B or L-1 status.  If the employer has 50 or more employees and 50% are on H-1B or L-1 status (and do not have a green card petition pending), then the additional fee is $10,000 per worker.

H-1B Employee Number Limits and Recruitment Requirements.

The bill also introduces certain restrictions on the number of H-1B employees a company can have.   Starting fiscal year 2014, companies will be banned from brining any additional workers if more than 75% of their workers are H-1B or L-1 employees.   Starting fiscal year 2015, the ban applies to companies if more than 65% of their workforce are H-1B and L-1 workers and in fiscal year 2016, the ban moves down to 50%.  It is unclear if pending green card applicants would be included in this count.

Before an employer can file an H-1B petition, the employer will have to recruit American workers first.  The Department of Labor will have a searchable website for posting H-1B positions and employers will have to post a detailed job opening on this website for 30 days before hiring an H-1B applicant to fill that position.

H-4 Employment Authorization

The bill would allow spouses of H-1B workers (who are on H-4 status) to obtain work authorization if the country of origin provides reciprocal treatment to spouses of U.S. workers.

H-1B Portability.

The bill would create a 60-day transitional period during which H-1B workers will be eligible to change jobs – in contrast to the current system where there is no grace period between switching jobs.

Dual Intent for F-1 Student Status.

The bill would create dual intent for F-1 students who apply to come to the U.S. to study in a bachelor’s (or higher) level program.  This should make it easier for many F-1 students to obtain a visa stamp at the U.S. Consulate as a substantial number of F-1 visas are being denied due to some immigrant intent.

New Guest Worker Program

The bill proposed a new guest worker program which would be a “W” visa.   The W visa holder will be able to come to the US o perform services or labor for a “registered” employer in a “registered” position.  Spouses and children would be able to accompany the worker and would be given work authorization.   There will be an annual cap of 20,000 initially, with annual increase to a maximum of 75,000 in 2019.  Afterwards, the annual cap would vary depending on a calculation of employment and demand with an increase in the cap being linked to lower unemployment and increase in the required salary – the so-called “safety valve”

The maximum period of stay for W nonimmigrants would be 3 years and may be renewed for an additional 3-year period.  There is a limit on unemployment (60 consecutive days).

Employers who wish to employ W visa workers will have to submit an application and describe the type and number of employees needed.  Before an application can be submitted, however, the employer would have to advertise for at least 30 days and carry a number of recruitment steps.  Annual reports will have to be submitted to the government.  The wages should be either the actual wage paid by the employer to other employees with similar experience or the prevailing wage, whichever is higher.

The W visa would not be available to positions which normally require a bachelor’s degree or higher, including some computer-related occupations.

Diversity Visa Lottery to be Eliminated in 2015

The diversity visa (green card) lottery will be eliminated in 2015.  Applicants/winners under the 2013 and 2014 lotteries will be processed.

Path to Citizenship to People without Authorization

The bill creates a path to citizenship to the 11 million or so people who are currently in the U.S. without authorization.  The bill creates a Registered Provisional Immigrant (RPI) status.  To obtain an RPI status, a foreign national must have been in the US as of December 31, 2011 with continuous physical presence in the US, must pay a $500 penalty (except Dream Act youth), pay taxes and application fees (to be determined).  Ineligibility grounds include:  conviction for aggravated felony; conviction of felony; conviction of three or more misdemeanors; conviction of an offense under foreign law; unlawfully voting; and otherwise inadmissible due to health, security or moral grounds.

Immigrants who are granted RPI status and their spouses/children will obtain work and travel authorization.  The RPI status will be for a 6-year term, with the possibility of extension.  After an immigrant has been in RPI status for 10 years they can adjust to a permanent status under the merit-based system (described above) and assuming all existing immigrant visa backlogs have been cleared and after paying a $1,000 fine (and only after the borders have been secured, see below).

Border Control Strengthened and E-Verify Required for All Employers

The bill sets certain goals for securing the US borders and directs the Department of Homeland Security to implement certain measures to secure the border.  Beginning to implement such programs is a condition to the approval of RPI status to people who are in the US without authorization and there are certain benchmarks as conditions to allowing RPI holders to adjust and obtain lawful permanent status.

Additionally, the bill requires all employers to use the E-Verify system over a 5-year phase-in period.  Large employers with 5,000 or more employees will be required to start using E-Verify in two years.  Employers with more than 500 employees will have three years and all employers will have to start using E-Verify in four years.  E-Verify will have a photo-matching component requiring employers to match E-Verify system photo with the new hire and to ensure that this is the same person.

Finally, the new bill would create a better entry/exit tracking system at ports of entry to allow better tracking of foreign visitors who overstay their status in the U.S.

Important Note:  This is Just a Legislative Proposal and Not a Law Yet

It is important to underscore that this is a legislative proposal introduced by a number of U.S. Senators and not a law.  Only after an identical bill is passed by both the Senate and the House and signed by President Obama would the bill be enacted into law.   We expect that there would be a number of hearings, comments, amendment to this proposal over the next days and weeks and it is entirely possible that many of the provisions would change, some substantially.

Conclusion

We are very happy to be finally able to share some actual proposal for a comprehensive immigration reform.  We expect a lot of activity over the next days and week and we will monitor closely and report on any substantial developments on immigration reform.   Also, we will be conducting a series of live chats and webinars to discuss and analyze this proposal, in its current form and as it may be amended before it becomes law.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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The Immigration Innovation Act of 2013 Proposes Substantial Reforms to Employment-based Visas

It is only Tuesday and this week has already been full of immigration proposals.   After yesterday’s announcement for a blueprint for a comprehensive immigration reform, today a group of Senators has released an actual draft bill which picks up where yesterday’s proposal left off with respect to employment-based immigration.      Senators Orrin Hatch of Utah, Amy Klobuchar of Minnesota, Marco Rubio of Florida and Chris Coons of Delaware have introduced the Immigration Innovation (I2, or I Squared) Act of 2013 which seeks to increase the H-1B quota, enhance the portability of existing H-1Bs, increase the number of employment-based green cards and allow U.S. students (especially STEM) to obtain green cards faster.   See the full text of the proposed bill.

Employment-based Nonimmigrant H-1B Visas

The Immigration Innovation Act of 2013 seeks to increase the H-1B cap from 65,000 to 115,000 and establish a dynamic “H-1B escalator” which would increase the cap based on demand during each H-1B filing season, with a maximum of 300,000.   The bill also removes the cap (to unlimited number) from US advanced degree holders (currently at 20,000 per year).   Dependent spouses to H-1B visa holders will be permitted to work and increased portability rules will make it easier for H-1B workers to switch employers (creating grace periods after termination, etc.).

Employment-based Green Cards

The bill would enable the recapture of green card numbers that were approved by Congress but were not used in the past.   Certain categories of applicants would be exempt from the green card numbers:  dependents of employment-based green cards; U.S. STEM advanced degree holders; persons with extraordinary ability and outstanding professors and researchers (under the EB-1 category).   The bill would also provide for the roll-over of unused employment-based immigrant visa numbers to following fiscal year so that green cards numbers are not lost.   Also, the proposal would eliminate the annual per-country limits for employment-based visa petitioners and also adjusts the per-country caps for family-based visas.

Additional Fees to be Used for U.S. Training Programs

The bill would raise the fees for H-1B and I-140 petitions and the increased fees would be used to support grant programs to the states to promote STEM education and worker retraining.

Conclusion

It should be noted specifically that this is simply a proposed bill, and not a law.   This bill, in its current shape, is likely to undergo changes, some of which dramatic, even if it ultimately becomes a law.   Since there are a number of immigration proposals circulating at this time in Congress, it is possible that this bill may be folded into a more comprehensive immigration package.

We will certainly follow developments very closely and provide updates.   We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.

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Group of Senators Releases Framework for Comprehensive Immigration Reform

Earlier today, a group of eight U.S. Senators released a proposed framework for a comprehensive immigration reform.   The document signed off by Senators Charles E. Schumer of New York, John McCain of Arizona, Richard J. Durbin of Illinois, Lindsey Graham of South Carolina, Robert Menendez of New Jersey, Marco Rubio of Florida, Michael Bennet of Colorado, and Jeff Flake of Arizona, outlines the framework for comprehensive immigration reform, including a pathway to U.S. citizenship for about 11 million undocumented immigrants currently in the U.S.

Our office has closely monitored Congress’ attempts to enact into law a comprehensive immigration reform over the past few years; however, this time around it seems that passing a comprehensive immigration measure is actually possible, and even likely.    After the November 2012 elections, the Republicans have embraced the idea of immigration reform more warmly.   As a result, we will continue monitoring serious developments on this topic and provide updates for the benefit of our readers and clients.

The Proposed Comprehensive Immigration Reform Framework

Create a Path to Citizenship for Unauthorized Immigrants Already in the U.S.

Under the proposal, the law would allow undocumented immigrants with otherwise clean criminal records to quickly achieve probationary legal residency after paying a fine and back taxes.   Such immigrants could pursue full citizenship — giving them the right to vote and access to government benefits — only after new measures are in place to prevent a future influx of illegal immigrants.  Such measures would include border security, a new program to help employers verify the legal status of their employees and more stringent measures aiming to prevent immigrants to overstay their visas.

Minor children who are not documented and who were brought to the U.S. would not be subject to the “back-of-the-line” provisions and would have an easier path to citizenship.  Similarly, agricultural workers who have been working without documentation would have an easier path to citizenship.

Improve the Legal Immigration System and Attract the World’s Best and Brightest

The proposal seeks to reduce current backlogs  in the family and employment-based visa categories so that future immigrants see the lawful immigration system as the only way of entry into the U.S.   Also, a green card would be awarded to Ph.D. or Master’s degree holders in science, technology, engineering or math (STEM) from an American university.

Stronger Employment Verification

The proposal calls for a “tough, fair, effective and mandatory” employment verification system making employers liable for hiring undocumented workers and making it harder for undocumented workers to falsify documents and find employment.

Increasing Foreign Workers Quotas

The proposal seeks to improve the system for hiring lower-skilled workers by U.S. employers by allowing more lower-skilled workers’ quotas and making it faster and easier for U.S. workers (after following procedural safeguards to ensure no U.S. workers are available for the job) to bring foreign workers.

Other Immigration Proposals in Congress

There are other immigration proposals, in varying stages, intended to deal with related issues.   For example, Senator Orrin G. Hatch of Utah, a Republican, and Senator Amy Klobuchar of Minnesota, a Democrat, would propose a bill which would nearly double the number of H-1B temporary visas available each year to highly skilled immigrants. It would also free up more permanent resident visas, known as green cards, so those immigrants could eventually settle in the United States and go on to become citizens.

Conclusion

It seems as finally there seems to be broad enough consensus here in Washington, DC that the current immigration system must be reformed to deal with structural problems.   Our office faces and helps individuals who have to deal with such structural immigration system problems every day and we welcome these proposals.    Just because this is a framework, it is subject to (and will likely) change, negotiation and political manipulation by many; however, we hope that what would emerge as immigration reform law is a fairer system which would allow certainty and path to achieving the American dream to many.

We will certainly follow developments very closely and provide updates.   We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about this article.

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