Eight U.S. senators have released their proposal for overhauling the U.S. immigration laws. The bill attempts to modernize the current U.S. immigration system by making it more attractive to highly skilled and educated foreigners as well as resolve the issue of undocumented immigrants. The bill contains several provisions that if enacted would have a major impact on our clients, these are summarized below:
- Major Changes to Green Card Preference Category System
- The following immigrants will no longer be counted toward the employment-based preference categories: extraordinary ability aliens in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; holders of doctoral degrees; certain classes of physicians; and immediate family members of employment-sponsored immigrants.
Allocation of a greater number of green cards to those who have:
- Advanced degrees and will be sponsored by a US employer in a position related to the sciences, arts, professions or business; or
- A master's degree or higher in a science, technology, engineering or mathematics field from a U.S. university or college; earned their degree within five years of the petition filing; and have an offer of employment from a U.S. employer in a related field.
- Allocation of a greater number of green cards to individuals applying as skilled workers, professionals, and other professionals.
- Creation of a new green card category for individuals who are establishing a startup in the United States.
- Creation of a merit-based green card system whereby immigrants are awarded points based on their education, employment history, residence length in the United States, and "other considerations." The more points an individual has, the greater possibility of a green card. This category will have a minimum of 120,000 green cards available per year and this number will increase if the US unemployment rate remains lower than 8.5% to a maximum of 250,000. The allocation of these visas will begin on October 1, 2014 for immigrants (family and employment-based) who have been in the green card process for several years.
- From fiscal year 2015 to 2023, additional green cards will be allocated to family and employment-based immigrants who are already in the process using certain formulas.
- Mandatory E-Verify for All Employers
- Over the course of five years, all U.S. employers will have to register and begin using the E-Verify system to check the work authorization of their workforce. Larger employers will be phased in during the first two years and smaller employers through the fourth year.
- All non-US citizens will be required to present a biometric Employment Authorization Document (EAD) or biometric Green Card, the photos of which will be stored in the E-Verify system so that it can be compared to existing photos kept in other government databases. Additionally, the employer will have to certify that the photos are identical matches to documents presented.
- H-1B Visa Changes
- Annual quota is raised from 65,000 to 110,000 with an additional 25,000 visas allocated toward individuals with advanced degrees from U.S. universities in the fields of science, technology, engineering or mathematics. The quota can be raised/lowered by 10,000 visas to a maximum of 180,000 according to certain formulas.
- Sponsoring employers will have to pay H-1B workers more than US workers for the same position.
- H-4 dependent spouses will be able to seek work authorization.
- H-1B holders will have a 60-day grace period in which to look for a new job.
- H-1B Dependent Employers will have to pay higher wages and higher fees:
- Payment of an additional $5,000 fee per petition by employers with 50 or more employees, of which 30% to 50% are H-1B or L-1 holders (that are not in the green card process) when they sponsor a new worker in either H-1B or L-1 status.
- Payment of an additional $10,000 fee per petition by employers with 50 or more employees, of which more than 50% are H-1B or L-1 holders (that are not in the green card process) when they sponsor a new worker in either H-1B or L-1 status.
- All Sponsoring Employers will have to recruit before hiring an H-1B worker via a website to be created and maintained by the Department of Labor.
- Establishment of new procedures and greater penalties to intercept and prevent H-1B fraud.
- H-1B and L-1 Caps on Employers with High Certain Percentages of Foreign Workers
Prohibitions are placed on employers sponsoring more H-1B or L-1 workers for: (1) Employers "whose U.S. workforce largely consists of foreign guestworkers"; (2) In fiscal year 2014, employers with an H-1B/L-1 workforce of more than 75%; and (3) In fiscal year 2015, employers with an H-1B/L-1 workforce of more than 65% and in fiscal year 2016, with an H-1B/L-1 workforce of more than 50%.
- Creation of the W Visa for Lower Skilled Workers
This visa will require employers to register with the government, will allocate a certain number of visas per year and will require an employer to recruit in the US for the position before hiring the worker.
Other provisions in the bill include:
- Increase in Border Security – this provision would allocate funds to the creation and implementation of a strategy that would better secure the U.S./Mexico border which includes surveillance systems and greater numbers of agents.
- Legalization of Undocumented Immigrants – the bill would allow undocumented individuals to apply for permanent residence if they meet a physical presence requirement, pay a $500 fee, have not committed certain crimes, and meet several other criteria. These individuals would receive their permanent residence after 10 years if they remain physically present in the United States, have paid all of their taxes, have worked regularly, pass an English and Civics exam, all other individuals who are waiting for permanent residence under the family and employment sponsored categories are able to apply for permanent residence and pay an additional fine of $1,000.
- In the E-Verify system, employees will be able to "lock" their Social Security number so that it will be completely unusable until they unlock the number (when they are starting with a new employer). Additionally, individuals will be able to view their E-Verify history so that they can alert authorities of unauthorized use.