Overview of Gang of Eight’s “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013”

The Senate “Gang of Eight” which has been working on an immigration proposal since last year has released an outline of their upcoming immigration reform bill titled the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.” While this is a monumental step forward in Comprehensive Immigration Reform (CIR), this is, in many ways, just the beginning of the process. From here congressional hearings, debates, and amendments to the bill will take place. Despite optimism and support for the passing of CIR, there is still a long road forward before this bill will become law, if it passes congress. The first hearings on the bill are scheduled for later this week and early next week with the Senate Judiciary’s “Hearing on Comprehensive Immigration Reform Legislation.” Exceptional political progress is being made, but there is still much work to be done.

As stated above, the ability for an equally bi-partisan group of Senators to compromise on the core issues of CIR is encouraging for immigration reform advocates. But, the upcoming process of debate and amending the proposed bill is where alleged “poison pills” –aspects and additions to the bill that are so restrictive that inclusion will doom the legislation to failure- will come to light. An example of such a potential “poison pill” is the proposal that the diversity lottery category be eliminated and the family-based categories be significantly reduced.

Another example of a potential “poison pill” is the central importance of border security to CIR. Already more conservative elements in the Senate are saying that border security measurements of the new bill are no better than those offered in the failed 2007 CIR proposal. The Gang of Eight compromise was achievable due to the lack of restrictive border security measurements, but it is unlikely that Senator’s outside of this group will be willing to vote on a bill that does not have definitive benchmarks for border security as part of the legalization process that are more restrictive that those currently offered. The very things that made the Gang of Eight compromise possible may end up hurting the bill once it is released to wider congressional scrutiny. Remaining optimistic and hopeful that CIR will pass should not obscure the fact that there are still many hurdles yet to pass before CIR can become law.

An outline of the bill has been released and the most important aspects of the bill are as follows.

Key Aspects of the Bill

Changes to Legal Immigration

Increased Emphasis on Advanced Degree STEM visas: One aspect of CIR that nearly every member of Congress has agreed on is the desire to retain and attract talented and highly educated aliens to work in the United States with green cards. Under the proposed bill, 40% of employment based visas would be allocated for alien professionals with advanced degrees in the science, arts, business and certain medical professionals. Advanced degree STEM graduates from US universities would be included in this category. The STEM degree would have to have been obtained within 5 years prior to filing the petition.
A new entrepreneur “Start-up visa” category would be created for foreigners who want to create a company in the United States.
In addition to the 40% allocation each to “Advanced Degree” and “Professional and Skilled Workers” employment categories, the bill will also create a new merit based immigrant category similar to those utilized in Canada and many European countries.
5 years after enactment the bill would create a merit based category with 120,000 annual visas. Potential immigrants would receive “points” based on education, employment, amount of time spent legally in the US, and other factors. Aliens with the most points would qualify for visas in a given year. This category would be able to expand by 5 percent a year to a ceiling of 250,000 visas. For this category to expand demand for the visa would have to be greater than the current visa numbers in that year and the national unemployment rate would have to be below 8.5%.
Derivatives beneficiaries of employment-based visas, EB-1A immigrants, EB-1B immigrants, EB-1C immigrants, PhD holders in ANY field, and certain physicians who have met the home residency requirement or received a waiver of that requirement would not be counted against the annual employment-based visa number limits. Aliens in these groups would not have to worry about backlogs on long visa waits and would be able to adjust status at any time, assuming they qualify for permanent residency. The inclusion of all doctorates in the exemption and not just STEM doctorates will be beneficial to PhD holders in all fields.
The unlimited “Immediate Relative” visa category would be expanded to include children and spouses of LPRs and children or spouses of those following to join a child, parent, or spouse of a US citizen or LPR.
Family based immigration would be reduced by eliminating US citizen petitions for siblings and their spouses and children. 18 months after the enactment of the bill, immigration based on sibling relationships would be eliminated. This, coupled with the expansion of the “immediate relative” definition, would mean there would be only two family-based visa categories: one for married adult children who file for permanent residency before the age of 31; and one for unmarried adult children of LPRs.
The EB-4 Special Immigrants and EB-5 Employment Creation Immigrants categories would be set at 10% of total employment visa numbers.
The Diversity Lottery program would be eliminated in 2015. 2013 and 2014 diversity lottery winners would still be able to immigrate to the United States.
The V visa would be used and expanded to allow family members of permanent residents and citizens to live in the United States while awaiting adjudication of their own green card applications and to allow other family members to visit the United States for 60 days per year.

H-1B Changes

H-1B visa numbers cap would be increased from the current yearly limit of 65,000 to 110,000. The current advanced degree cap will be raised to 25,000 per year and will be for advanced STEM degree holders from US universities. Similar to the new merit-based immigration system, H-1B visa numbers will be able to increase yearly to a ceiling of 180,000 if demand is greater than availability and the change in unemployment between years based on BLS data. If unemployment is too high and/or demand for H-1Bs is low, the visa numbers can decrease, but not below 110,000 per year. The H-1B numbers will increase or decrease by no more than 10,000 per year.
H-1B visas will have a higher wage required to be paid in order to protect US workers. Additionally, H-1B dependent employers will be required to pay a still higher salary for their H-1B employees.
Spouses of H-1B holders will be able to receive work authorization depending on the reciprocity of work authorization being granted to US spouses in the H-1B spouse’s country of origin.

Guest Worker and Agricultural Visa

A Guest Worker Visa: A newly created “W visa” will be a 3-year permit for low skilled workers to enter and become employed in the US. This visa program would begin April 1, 2015. Visa numbers would start at 20,000 and will eventually rise each year. Beginning at 20,000 for the first year, it would rise to 35,000, 55,000, and 75,000 visas per year. After that, a newly established governmental market analysis program would either raise or lower the yearly amount based on economic demand, with a 20,000 visa floor and a 200,000 ceiling.
Legal status for agricultural workers would be possible through an Agricultural Job Opportunity program, but aliens must obtain an employee commitment to work in agriculture for 5 years. Agricultural workers must also show previous work and contributions to the agricultural sector of the United States.

Path to Citizenship for undocumented workers through Registered Provisional Immigrant (RPI) status

Aliens will start the legalization process by providing evidence that they have lived in the United States continuously and since at least December 30, 2011.
Aliens who are the spouse of a US citizen or LPR or the parent of a US citizen and had lived in the United States before December 31, 2011 but were deported will be eligible for RPI status as well. Deported childhood arrivals eligible as a DREAMer who lived in the United States before December 31, 2011 will also be eligible for RPI status.
Aliens must pass a background check screening for felonies, aggravated felonies, three or more misdemeanors, an offense under foreign law, and illegal voting practices.
Aliens must remain employed during the legalization process.
Aliens must pay fines, application fees, and back taxes. The first RPI status is valid for 6 years and carries a $500 fine. RPI is renewable, but upon renewal an additional $500 fine must be paid. Once an alien is eligible to adjust status to a permanent resident, a $1,000 application fee is required. So, in total fines and fees will amount to $2,000.
10 years after border is secure, undocumented workers can obtain a green card through the newly established merit-based visa category if they have meet and maintained the other requirements for legalization, paid all of their back taxes, demonstrate knowledge of US Civics and the English language, AND all backlogs of employment and family-based visas that existed at the time of the bills enactment have had their priority date become current. A major component of the merit-based visa category is that, starting in October 2014, merit-based visas will become available to certain long waiting petitioners in order to reduce the employment and family-based backlogs. Additionally RPIs other than DREAMers and Agricultural program workers cannot adjust status to a permanent resident until the border has been deemed secured by the Department of Homeland Security.
DREAMers and Agricultural Program workers will be eligible to receive a green card in 5 years and will not be restricted from doing so due to border security triggers.

Changes to the border and enforcement

The bill aims for “effective control” in “high-risk” areas of the southern border. This means apprehending 90% of illegal entry attempts in areas with 30,000 or more registered apprehensions in a year. If the 90% effectiveness rate in high-risk areas is not met in 5 years after the enactment of the bill, a new federal border control commission would be created with an additional $2 billion to reach the stated enforcement goal.
$3 billion would be spent on border security strategy and $1.5 billion would be spent on a fencing project along the southern US border. The National Guard would be authorized to assist in the fence building program as well as other enforcement efforts. These strategies would have to be completed before aliens could obtain RPI status.
A 3,500 increase to the number of Immigration and Customs Enforcement agents is called for by the bill.
The Mexican border will be policed by drones.
E-verify will be required for all businesses to ensure compliance with immigration enforcement.

Conclusion

The potential for derailment of CIR is something that has always plagued reform efforts. Previous CIR proposals, such as in 2007, received much media attention and bipartisan support only to unravel when the specifics of legislation were addressed in Congress. This year does truly seem different: the bipartisan support in the Senate; political collaboration and respect between the executive and legislative branches; consensus that the United States must attract and retain the best and brightest; and agreements between organized labor and business concerns over a guest worker program are all very encouraging signs that this could be the year that CIR passes. However, it is important to be mindful of the challenges that lay ahead when planning your future immigration.

It is advised that anyone considering immigration to the United States who qualifies for the current system not weight on future developments before coming to work in the country. CIR in 2013 is exciting and encouraging, but it should not be taken as a given and allowed to affect the immigration decisions of aliens who qualify now for visas or permanent residency. As the W visa aspect of the current CIR proposal shows, even if CIR passes in 2013, it may be years yet before its provisions take effect. There is little reason or benefit in waiting to immigrate. As always, it is recommended that potential immigrants contact an experienced immigration attorney to discuss their options in coming to start their lives in the United States.

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