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“Gang of Eight” CIR Bill Released (Border Security, Economic Opportunity, and Immigration Modernization Act of 2013)

August 27, 2013

The bipartisan Senate “Gang of Eight” has released an outline of their comprehensive immigration reform bill, titled “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013”. The 19 page outline covers topics ranging from border security, employment verification, temporary visas for high and low-skilled workers,  and a pathway to citizenship. The entire outline can be viewed here: http://www.scribd.com/doc/136230105/Outline-of-the-Border-Security-Economic-Opportunity-and-Immigration-Modernization-Act-of-2013.

The Senate Judiciary Committee Hearing on Comprehensive Immigration Reform Legislation, which was previously scheduled for Wednesday, has been postponed until Friday April 19th at 10:00 AM. More information will be provided as it becomes available.

Zelnick & Erickson has summarized the most pertinent parts of the proposed bill for our clients below.  Please remember this is only a bill, and has not been signed into law yet.

Temporary Visas/H-1B Visas:

• H-1B reform: base cap of 65,000 raised to 110,000 (master’s cap: 20,000 to 25,000).

• Cap can increase up to 180,000 based on flexible system – up to 10,000 per year.

• Employers will be required to pay significantly higher wages for H-1B workers.

• Employers will be required to conduct H-1B recruitment: new searchable website created by Secretary of Labor. Job posted for 30 days before hiring an H1B applicant.

• H-1B spouses will receive work authorization IF “sending” country provides reciprocal treatment.

• 60-day transition period for H-1B workers to change jobs.

• Dual intent visas for all students in bachelor’s degree programs or above.

• H-1B dependent employers: Significantly higher wages and fees than normal users of H-1B program

• H-1B Dependence determined by employees in H-1B or L-1 status (who do not have a green card petition pending).

◦ $5,000 fee per additional worker if 30-50% of workers in H-1B/L-1 status.

◦ $10,000 fee per additional worker if more than 50%.

• Companies with >75% of workers in H-1B or L-1 status in FY2014 will be banned from Cap; 65% in FY2015; and 50% in FY2016.

Employment Verification:

• Mandatory, enhanced E-Verify: all employers required to use E-Verify within 5 year phase-in period depending on number of employees.

• System will use Photo Matching ID process. Non-citizens will provide “biometric green cards” and U.S. Citizens will provide their passports.

Employed Based and Family Based Green Cards:

• Four family preference categories reduces to two, covering: unmarried adult children; married adult children who file before age 31; and unmarried adult children of LPRs.

◦ Repeals visas for siblings of U.S. citizens 18 months after enactment of bill.

◦ Immediate Relative definition amended to include a child or spouse of an alien admitted for LPR.

• Diversity Visa Program is repealed after FY2014.

• Employment-based: the following categories are exempt from annual numerical limits: derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in any field; and certain physicians

• 40% of EB visas allocated to: 1) advanced degree holders, or their equivalent, in the sciences, arts, professions, or business; and 2) aliens who have earned a master’s degree or higher in a field of science, technology, engineering, or mathematics from an accredited U.S. institution and have an offer of employment in a related field, and the qualifying degree was earned in the five years immediately before the petition was filed.

• EB visas for skilled workers, professionals, and other professionals increased to 40%, maintains percentage of EB visas for certain special immigrants at 10%, and maintains visas for those who foster employment creation to 10%.

• New Startup Visa: for foreign entrepreneurs.

Merit Based Visas:

• Created in 5th year after enactment.

• Awards points to individuals based on education, employment, length of residence in the U.S. and other considerations.

• Visas are earned on a point based system.

• 120,000 visas will be available per year to those who select the merit based pathway.

• Can increase 5% per year if demand exceeds supply and unemployment remains below 8.5% – maximum cap of 250,000 visas.

• Merit-based system would be created starting October 1, 2014 for EB visas pending 3+ years, or family-based petitions pending 5+ years.

New Border Security Resources:

• Funding for 3,500 additional Customs agents; authorization for National Guard to be deployed to Southwest border to construct fencing and surveillance systems, and aid CBP in checkpoints and borders.

• Goal for Border Security:

◦ Effectiveness rate of 90% within 5 years. If goal is not reached, Commission to be established and extra resources created to reach goal. “RPIs” cannot adjust to LPR status until effectiveness rate is reached.

Adjustment of Status to Registered Provisional Immigrant Status

• Must be resident in U.S. prior to December 31, 2011 and maintenance of continuous physical presence since then.

• $500 fee, back taxes paid, application fees.

• Ineligibility criteria: Convicted of aggravated felony, felony, 3+ misdemeanors, offense under foreign law, unlawfully voted, or inadmissible for Criminal, National Security, Public Health or other morality grounds.

• RPI status: can petition for spouse/children, can work for any employer and travel outside the U.S.

• After 10 years, aliens in RPI status may adjust to LPR status through new Merit Based System for green cards, if certain conditions are met.

◦ Cannot apply until backlog of family and employment-based immigrants has been cleared.