Details of the Proposed Merit-based Visa System under the Border Security, Economic Opportunity, and Immigration Modernization Act

If the currently proposed Senate bill passes as written, 5 years after its enactment there would be created a merit-based visa system that would award green cards based on a holistic assessment of an alien’s skills, education, work history, ties to the United States, knowledge of the English language, business activities, community service, and country of nationality. The merit-based system would start out with 120,000 annual visas and would potentially grow to a ceiling of 250,000 visas per year, depending on demand.

It is important to keep in mind that this is only an analysis of a proposed bill and that nothing referenced in this article has yet been enacted. This is merely a prospective look at what future immigration law may look like according to the Border Security, Economic Opportunity, and Immigration Modernization Act.

Under the current proposal, for the first 4 fiscal years after enactment of the bill, the visa numbers allocated to the merit-based category would be used to supplement EB-3 visa numbers in order to eliminate the lengthy backlogs currently existing for third preference employment-based petitions. Starting in the fifth fiscal year after enactment of the bill the merit-based visa numbers would be open to applicants without pending or approved petitions in either employment-based or family-based categories.

Visa Allocation and Availability

The merit-based system would be divided into two tiers, one for high-skilled workers (Tier 1) and one for medium to low-skilled workers (Tier 2). Each year starting in the fifth fiscal year after approval of the act, 50% of the visas would be allocated to each tier. Unused visas from the previous year would be able to be utilized for the next year’s applications in proportions allocated to both tiers. Tier 1 positions are for jobs that require extensive and considerable preparation and Tier 2 positions are for jobs that require medium preparation or less to perform. These terms are borrowed from and modeled after current O*Net “Job Zones” terminology.

If the national unemployment rate remained at or below 8.5% AND if available merit-based visas only accounted for less than 75% of visa demand in a fiscal year, the next year’s visa numbers would be increased by 5% over the previous year. If the unemployment rate was higher than 8.5% OR the available visa numbers met 75% or more of the merit-based demand, the visa numbers would remain the same for the next fiscal year with no increase.

The proposed fee for such a merit-based immigrant visa would be $500.

Points System

Under the proposed merit-based visa category, an alien would accrue points based on education, work experience, family ties to the United States and other attributes. Alien applicants with the highest overall points in a year would be given green cards.

Tier 1:

There would be a maximum of 100 possible points in this category. Points would be allocated based on:

Education – A PhD earns and applicant 15 points, a Master’s alone earns 10 points and a Bachelor’s alone earns 5 points. A PhD holder would not be able to accrue points for a bachelor’s degree and a master’s degree, despite the fact that he/she may possess them in addition to a PhD.
Employment – An alien may accrue 3 points per year that the alien has been lawfully employed in the United States in an O*Net Job Zone 5 occupation and 2 points per year that the alien has been lawfully employed in the United States in an O*Net Job Zone 4 occupation. A maximum of 20 points can be earned through employment. So, if an alien has worked for 10 years in a Job Zone 5 occupation he/she will only receive 20 points, the same as an alien who has worked for 10 years in a Job Zone 4 occupation.

Employment Related to Education – If the alien is employed in the United States or has an offer of employment in the United States related to his/her education, he/she will receive 10 points if it is in a Job Zone 5 occupation and 8 points if it is in a Job Zone 4 occupation.
Entrepreneurship – Alien entrepreneurs who employee at least 2 employees in either Job Zone 4 or Job Zone 5 occupations will receive 10 points.
Employment in a High Demand Occupation – Aliens employed in the United States or with offer of employment in the United States in high demand jobs shall receive 10 points. This is separate from the general Employment points awarded based on years of employment. For Tier 1, “high demand occupation” means any one of the 5 most highly petitioned for occupations for H-1 visas in the previous fiscal year. For example, in fiscal year 2012 the top H-1 occupations were: Programmer Analyst, Project Manager, Computer Programmer, Systems Analyst, and Software Engineer. Under the proposed bill, these occupations would be considered “high demand” for the merit based visa during the next fiscal year.
Civic Involvement – Aliens with significant amounts of community service may receive 2 points.
English Language Knowledge – Aliens who have received an 80 or better of the Test of English as a Foreign Language or an equivalent score on a comparable test will receive 10 points.
Siblings and Married Sons and Daughters of Citizens Over the Age of 31 – Under the proposed bill, siblings of US citizens and married sons and daughters over the age of 31 of US citizens would no longer be eligible to receive family-based immigrant visas. However, these familial relationships will earn applicants 10 points in the merit-based visa system.
Age – Aliens between the ages of 18 and 24 years will receive 8 points. Aliens between the ages of 25 and 32 years will receive 6 points. Aliens between the ages of 33 and 37 will receive 4 points. No points are awarded based on age for aliens over 37 years old. While the maximum possible points in the merit-based system is 100, for practical purposes it may be unlikely that many PhD holders would receive their degree before the age of 25. So the likely maximum would be 98 points, though it is certainly possible to receive a PhD before the age of 25 years.
Country of Origin – Aliens who are nationals of a country that has sent less than 50,000 lawful permanent residents to the United States during the past 5 years shall receive 5 points. Under the proposed bill the Diversity Visa category would be eliminated. However, aliens from countries meeting the criteria of what are now known as Diversity Visa countries would receive points based on being a national of those countries under the proposed bill.

Tier 2:

There would be a maximum of 100 possible points in this category. Points would be allocated based on:

Employment – An alien may accrue 2 points per year that the alien has been lawfully employed in the United States with a maximum of 20 points may be gained based on years of employment. Aliens who have more than 10 years of employment in the United States will not continue to accrue points for that employment.
Special Employment – Aliens employed full-time or with offers of full-time employment in the United States will receive 10 points if the employment is in a high demand tier 2 occupation or in a zone 1, zone 2, or zone 3 occupation.

Caregiver Employment – Aliens who are or have been primary caregivers may receive 10 points.
Exceptional Employment Record – Aliens who have received promotions, have long-term employment with an employer, have risen from a lower job zone to a higher job zone, have participated in safety training, have received increases and pay, and other criteria may receive 10 points for their employment record.
Civic Involvement – Aliens with significant amounts of community service may receive 2 points.
English Language Skills – Aliens determined to have a “proficiency” in the English language by a standardized test designated by the Secretary of Education will receive 10 points. Aliens determined to have a “knowledge” of the English language will receive 5 points.
Siblings and Married Sons and Daughters of Citizens Over the Age of 31 – Under the proposed bill, siblings of US citizens and married sons and daughters over the age of 31 of US citizens would no longer be eligible to receive family-based immigrant visas. However, these familial relationships will earn applicants 10 points in the merit-based visa system.
Age – Aliens between the ages of 18 and 24 years will receive 8 points. Aliens between the ages of 25 and 32 years will receive 6 points. Aliens between the ages of 33 and 37 will receive 4 points. No points are awarded based on age for aliens over 37 years old.
Country of Origin – Aliens who are nationals of a country that has sent less than 50,000 lawful permanent residents to the United States during the past 5 years shall receive 5 points. Under the proposed bill the Diversity Visa category would be eliminated. However, aliens from countries meeting the criteria of what are now known as Diversity Visa countries would receive points based on being a national of those countries under the proposed bill.

Conclusion

If this bill passes, the merit-based visa will be a major change to the immigration system utilized in the United States. In conjunction with other changes to visa allocation, the addition of a minimum of 120,000 visas per year to qualifying immigrants, both high and low skilled, will help to ensure that lengthy backlogs are not formed. Additionally, aliens who are highly qualified but not meeting the criteria of other employment-based immigrant visa categories would be able to immigrate to the United States thanks to the points earned based on their attributes.

It is hard to tell if this bill will pass, or if it is will pass without major revisions to what the Gang of Eight has proposed. But, it is beneficial to look into the details of the bill to see the kinds of reforms that are emerging as politically desirable and feasible.

Moreover, as this particular reform proposal shows, even if all reform measure were to be passed in the Congress tomorrow, there would still potentially be many years before newly created programs would become available for utilization. The merit-based system would not start accepting applications for visa until the 5th fiscal year after enactment of the bill. Any potential immigrants who are considering a life in the United States may not want to wait for the uncertain future. If you qualify for a visa now, based on the current immigration laws, it may be better to go forward with an application than delaying to wait for other proposed avenues of immigration. If you are interested in pursuing employment through an immigrant visa in the United States, please contact our experienced attorney staff at info@hooyou.com for details on a free evaluation. We will ensure that the best option pertaining to your credentials will be identified.

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