The recently unveiled comprehensive immigration reform package—the Border Security, Economic Opportunity, and Immigration Modernization Act (S.744)—scheduled for committee markup May 9, 2013, proposes significant changes to the employment-based preference system.
The bill would adjust the annual caps on employment-based immigrant visas (green cards), clear up the years-long visa backlogs, recapture unused green cards, establish a new merit-based visa points system, repeal the Diversity Visa Lottery, eliminate per-country caps and create a new investor visa.
"This is the best part of the bill," Rebecca Peters, legislative affairs director at the American Council on International Personnel (ACIP), told SHRM Online. "The green card provisions are great for employers—they look to provide enough employment-based green cards not only for high-skilled employment-based future flows but also by way of clearing the employment-based second and third preference green card backlogs in seven years."
One of the measure's key priorities is working through the green card backlogs, which have been a major impediment, Peters noted.
Recipients of employment-based visas and their families spend years—sometimes decades—waiting for green cards, which are capped at 140,000 a year and subject to per-country limits.
"This reduction in the backlog will help give some clarity to the green card process and help with awkward issues like what to do if an employee is promoted within the many years he or she had been waiting to complete the green card process," said Andrew Wilson, a partner at Serotte Reich Wilson LLP, based in Buffalo, N.Y., and a Society for Human Resource Management (SHRM) Global Special Expertise Panel member. "That was always a nearly impossible scenario where an employer would be forced to predict what position they want an individual to fill in 10 years or longer."
Reallocating EB Visas
Beginning Oct. 1, 2014, unused green cards from fiscal years 1992 to 2013 would be recaptured and added to the current 140,000 annual cap on employment-based visas. Going forward, unused green cards would roll over to the next fiscal year.
"This will provide relief to those foreign nationals who have long awaited the ability to adjust their status or obtain their immigrant visa, based on an approved employment based petition," said Nataliya Rymer, an immigration attorney at Greenberg Traurig based in Philadelphia.
"In further efforts to prevent such backlogs as those that currently exist, the bill provides for the recapture and inclusion to the employment-based quota of those family-based immigrant visa numbers whch went unused in the prior fiscal year," Rymer told SHRM Online.
The bill would exempt the following groups from the employment-based quotas:
- Spouses and children of working immigrants. This would free up nearly 80,000 visas a year.
"This is huge," Wilson observed. "This change will have the greatest impact on cutting through the backlog."
ACIP, a SHRM affiliate, has supported spouse and children exemptions from the employment-based green card caps for years. "To see that come through in this bill is tremendous," said Peters.
- The previously categorized EB-1 immigrants: persons of extraordinary ability, outstanding professors and researchers, and multinational executives and managers.
"By exempting certain immigrants considered "first preference," immigrant visas can be reallocated for employers to more speedily gain access to the skills and talents they need," explained Peter Asaad, an immigration attorney and managing partner of Immigration Solutions Group, a Washington D.C.-based law firm.
- Doctorate-degree holders in any field.
- Physicians who have completed their J-1 two-year home-residency requirement.
- Formerly categorized EB-2s with an advanced science, technology, engineering or math (STEM) degree from a U.S. university, earned within five years of the petition filing, and with an employment offer in the U.S. in a related field.
If the legislation were passed, the reallocated EB visa limits would look like this:
- EB-2s, currently capped at 40,000 visas, would be 40 percent of the total (56,000 plus recaptured visas).
- EB-3s, currently capped at 40,000 visas, would make up another 40 percent (56,000 plus recaptured visas).
- EB-4s, currently capped at 10,000 visas, would be 10 percent (14,000 plus recaptured visas).
- EB-5s, currently capped at 10,000 visas, would round out the final 10 percent (14,000 plus recaptured visas).
In addition, the labor certification requirement for hiring advanced STEM degree holders from a U.S. university would be eliminated.
Along with permanently reauthorizing the EB-5 program, which grants green cards to investors who create U.S. jobs, the bill would establish an EB-6 immigrant investor category for foreign entrepreneurs who seek to immigrate to the United States.
Unlike EB-5 visa users, who typically invest in projects without taking an active role in running the business, EB-6 visa holders must have a significant ownership in the U.S. business, be employed as a senior executive in it and have a significant role in the founding or early-stage growth of the enterprise.
The entrepreneur also must have resided in the United States in lawful status for at least two years in the three-year period before the filing, and the business must meet certain job-creation and venture capital/investment funding thresholds or job-creation and annual revenue thresholds.
"I am elated that there is now a path to a green card for immigrant entrepreneurs who have not had one before," Tahmina Watson, owner of Seattle-based Watson Immigration Law, told SHRM Online. "It is a welcome and necessary provision. For example, now E-2 visa holders, investors from countries that have a treaty with the U.S., can have a path to a green card."
The EB-6 is aimed at the startup community, Watson explained. "The visa incentivizes continued success by measuring revenue generation as well as job creation and opens the door to a new workforce in the U.S., which will no doubt boost the U.S. economy."
Questions remain, however. Who will be considered a qualified entrepreneur? What will be considered significant ownership?
"When important terms are not defined, or guidance is not provided, the U.S. Citizenship and Immigration Services adjudicators are left to interpret the law themselves, and quite often the interpretation is subjective and inconsistent," Watson noted. "It is important that the standard is clear, so that applicants can provide adequate documentation and adjudicators can determine consistently whether the standards have been met."
The bill proposes that a merit-based points system be established five years after the legislation is enacted, as an alternative path to a green card, running parallel with the current employment and family-based systems.
"I think the merit-based visa proposal is a really creative and innovative way to flush more green cards into the system," said Peters. "How the system will actually function is still not fully known, as it would have to be implemented by the Homeland Security and State departments, however."
The system would provide two paths (track one and track two) to green card status, awarding points to individuals based on factors such as education, achievement, employment, family in the United States and length of residence. The applicants with the most points would receive green cards.
There is a clear shift in this legislation toward skilled workers and away from applicants seeking green cards for family reasons, said Wilson.
Under the merit-based system, 120,000 visas would be available per year, with the number possibly increasing if demand exceeded supply in any year in which unemployment was under 8.5 percent, with a maximum cap of 250,000 immigrant visas.
"The proposed merit-based green card system is an attempt to take a subjective inquiry—which of these people are more deserving of green cards?—and create an objective framework that will, more or less, mechanically respond to the inquiry," said Nici Kersey, managing director ofKersey Immigration Compliance, in Charlottesville, Va. "It will make people happy if they fit into the categories that wind up in the final law, and it will prove frustrating to those who might make great contributions to the U.S. but who fall short," she told SHRM Online.
"The merit-based system can be a useful tool in our immigration policy toolkit, as long as it does not replace or diminish the current employer-driven selection process which empowers employers to determine, based on their actual specific needs, which skills to import to fill that need," said Asaad.
Per-Country Quotas Eliminated
S. 744 would drop the 7 percent per-country quota limits on employment-based immigrant visas one year after the bill's enactment.
This is great news for Indian and Chinese nationals, who still face long backlogs in both EB-2 and EB-3 categories, said Katie Nokes Minervino, an immigration attorney at Pierce Atwood, based in Portland, Maine.
"The elimination of per-country limits will provide much-needed relief to an important subset of Chinese and Indian workers who are currently forced to play a maddening waiting game until their countries' backlogs clear enough for them to complete the green card process," Minervino added.
Some are concerned that while the elimination of per-country caps would benefit workers from populous countries like India, China and Mexico, other nationalities would have to wait longer for EB-3 visas. "I don't think that fear is warranted anymore, because derivative family members and others will be exempted from the count," Wilson pointed out. "Exempting family members alone should be enough to offset any concerns that other nationalities would be harmed by eliminating the per-country limits."
Diversity Visa Lottery Abolished
The bill would abolish the Diversity Visa Lottery, first held in fiscal year 1995, which distributes green cards to citizens from countries with historically low immigration rates to the United States; 55,000 green cards have been available each year in the lottery, which is often a pathway for African and Caribbean immigrants to enter the United States.
If this provision passes as is, then last year's lottery, held in October 2012, would be the last, although individuals selected for diversity green cards for fiscal years 2013 and 2014 would still receive them.
"While I thought it was a positive that nationals of underrepresented countries had a chance to obtain permanent residency in the U.S., the fact that our system had a random lottery while many others were spending many years and a lot of money to obtain permanent residency was always a little unfair to me," said Wilson.
The elimination of the Diversity Visa Program's "wild card" approach to immigration is, ultimately, a "reasonable trade-off for the creation of a merit-based green card track, which provides a path to residence for those who already have significant ties to our country," Minervino told SHRM Online.
"Immigration reforms will either enable U.S. employers and the U.S. economy to be at the top of the heap in the years and decades ahead or it will create obstacles," said Asaad. "The proposed bill helps maintain U.S. global competitiveness by maintaining the employer-driven employment-based preference system and increasing speed and access to the skills and talents employers need."
Roy Maurer is an online editor/manager for SHRM.
Follow him at @SHRMRoy
House Proposes Piecemeal Immigration Approach, SHRM Online Global HR, May 2013
Senate Bill Mandates E-Verify for All Employers, SHRM Online Global HR, April 2013
ACIP, SHRM Release Solutions for Employment-based Immigration, SHRM Online Global HR, March 2013
Mandatory E-Verify Central to Immigration Reform, SHRM Online Global HR, March 2013
Senate Republicans Stress Enforcement Before Comprehensive Immigration Reform, SHRM Online Global HR, February 2013
Senate Bill Calls for Market-Based H-1B Cap, SHRM Online Global HR, February 2013
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