Comprehensive Immigration Reform

Comprehensive Immigration Reform
April 16, 2013

Comprehensive Immigration Reform: Outline of the Senate’s “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013”


Earlier today, Senators Schumer and McCain briefed President Obama on the bipartisan immigration reform bill they drafted with their colleagues in the Senate (this bill will not become law until and unless the Senate, House of Representatives and President Obama approve it).  Below are the pertinent sections to legal immigration and the H-1B visa program.


Legal Immigration

  • Exempt the following categories from the annual numerical limits on employment-based immigrants: 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.
  • Allocate 40 percent of the worldwide level of employment-based visas to : 1) members of the professions holding advanced degrees or their equivalent whose services are sought in the sciences, arts, professions, or business by an employer in the United States (including certain aliens with foreign medical degrees) 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 of higher education 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.
  • Increase the percentage of employment visas for skilled workers, professionals, and other professionals to 40 percent, maintains the percentage of employment visas for certain special immigrants to 10 percent and maintains visas for those who foster employment creation to 10 percent.
  • Create a startup visa for foreign entrepreneurs who seek to emigrate to the United States to startup their own companies.
  • Eliminate the backlog for family and employment-based immigrants (see below discussion of merit-based system).
  • Repeal the availability of immigrant visas for siblings of U.S. citizens once 18 months have elapsed since the date of enactment.
  • Amend the definition of “immediate relative” to include a child or spouse of an alien admitted for lawful permanent residence.
  • Amend the existing category for married sons and daughters of citizens of the United States to include only sons and daughters who are under 31 years of age.
  • Repeal the Diversity Visa Program. Aliens who were or are selected for diversity immigrant visas for fiscal years 2013 or 2014 will be eligible to receive them.
  • Merit Based Visa: The merit based visa, created in the fifth year after enactment, awards points to individuals based on their education, employment, length of residence in the US and other considerations. Those individuals with the most points earn the visas. Those who access the merit based pathway to earn their visa are expected to be talented individuals, individuals in our worker programs and individuals with family here. 120,000 visas will be available per year based on merit. The number would increase by 5% per year if demand exceeds supply in any year where unemployment is under 8.5%. There will be a maximum cap of 250,000 visas.
  • Under one component of this merit based system the Secretary will allocate merit-based immigrant visas beginning on October 1, 2014 for employment-based visas that have been pending for three years, family-based petitions that were filed prior to enactment and have been pending for five years, long-term alien workers and other merit based immigrant workers.


H-1B Reform

  • Raise the base cap of 65,000 to 110,000 and raise the current 20,000 exemption for U.S. advanced degree holders to 25,000 exemption for advanced degree graduates in science, technology, engineering, and mathematics from U.S. Schools.
  • In future years, the cap can go as high as 180,000.  The increase or decrease cannot exceed 10,000 per year.  The cap will increase/decrease based on demand for H-1Bs and unemployment in “management, professional and related occupational categories.
  • Prevent H-1B workers from undercutting the wages paid to American workers by requiring employers to pay significantly higher wages for H-1B workers than under current law and to first advertise the jobs to American workers at this higher wage before hiring an H-1B worker.
  • Provide spouses of H-1B workers with work authorization if the sending country of the worker provides reciprocal treatment to spouses of U.S. workers.
  • Establish a 60-day transition period for H-1B workers to change jobs.
  • Provide dual intent visas for all students who come here on bachelor’s degree programs or above.
  • Crack down on abusers of the H-1B system by requiring “H-1B dependent employers” to pay significantly higher wages and fees than normal users of the program.
  • If the 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 of these two statuses.
  • If the employer has 50 or more employees, and more than 50% are H-1B or L-1 employees (who do not have a green card petition pending), the employer must pay a $10,000 fee per additional worker in either of these two statuses.
  • Crack down on the use of the H-1B and L visas to outsource American jobs by prohibiting companies whose U.S. workforce largely consists of foreign guest workers from obtaining additional H-1B and L visas.
  • In Fiscal Year 2014, companies will be banned from bringing in any additional workers if more than 75% of their workers are H-1B or L-1 employees.  In Fiscal Year 2015, the ban applies to companies if more than 65% of their workforce are H-1B and L-1 workers.  In Fiscal Year 2016, the ban moves to 50%.


Read President Obama’s comment regarding this bill.