Key Points for Employers on Senate Immigration Bill
April 24, 2013
After much anticipation and just on the heels of immigration advocacy in D.C. by our firm and others, the Senate bipartisan "Gang of Eight" on April 16 introduced the Border Security, Economic Opportunity and Immigration Modernization Act (S.744), which would provide legalization to roughly 11 million undocumented immigrants, including DREAMer students, as well as critically change the current legal immigration system. S.744 clocks in at 844 pages and is chock full of beneficial provisions for foreign nationals and employers as well as increased employer immigration compliance obligations. Hearings on the bill began last Friday - note that the bill during the next few months should undergo major changes with horse trading anticipated in the Senate and the House before reaching its final form.
Will Congress be able to keep up the momentum and enact comprehensive immigration reform (CIR) in 2013? It's worth taking a close look at the Gang of Eight's bipartisan proposal as the immigration debate rages on in full force. We have highlighted points most critical to our client employers and foreign-national employees:
H-1B and Other Nonimmigrant Visas
- Increase of annual FY H-1B quota from the current ceiling of 65,000 to a ceiling of 180,000
- Work authorization available for H-4 spouses
- Increase of U.S. advanced degree exemption from 20,000 to 25,000 but limited to STEM graduates
- 60-day "grace period" for all termed H-1B workers during which they will be considered in valid immigration status
- Changes to H-1B Labor Condition Applications (LCAs) - recruitment requirement involving a detailed posting on a DOL-designed website, a non-displacement attestation and revised government prevailing wage formula
- Limits placed on the total number of H-1B and L-1 workers allowed for employers who have 50 or more employees (75% allowed in 2015, 65% in 2016, and only 50% after 2016), with exemptions for "intending" immigrants
- More stringent requirements for H-1B "dependent" employers including increased filing fees
- "Deference" given to employers who have filed multiple and successful H-1B and L-1 cases, likely resulting in fewer RFEs
- New "INVEST" visa for entrepreneurs planning to start their own companies - must show $100,000 investment or that business has generated at least three jobs and $250,000 in revenue
- Increase from zero to $500 PERM labor certification filing fee
- STEM advanced-degree holders exempt from PERM labor certification requirement
- Exemption from quotas: Derivative family members (spouses and children under 21), EB-1 immigrants, doctoral degree holders, and physicians who have completed the foreign residency requirement would become exempt from the quota for employment-based preference categories
- Two merit-based immigration systems - the first would be a point system, with certain set-asides of permanent visas annually, and the second would be a system to allocate immigrant visas to clear out the visa retrogression backlog
- Per-country limits eliminated
- Diversity visa (DV) lottery eliminated
- E-verify mandatory for all employers at the end of a five-year phase-in period
We will be tracking the status of this bill closely and will keep you posted on its progress, as well as ways you may become involved in the legislative process if you are interested. In the interim, the New York Times' Q & A , published yesterday, may provide helpful information on family provisions and timing for interested employees.
UPDATE: AILA's detailed summary of the bill may be helpful. During the week of May 20, the Senate Judiciary Committee continues its mark up of the bill. You can read about the proposed amendments here.