Category Archives: Employment-Based Immigration

Rough outline of Senate immigration reform gives answers, raises questions

The Twittersphere has been abuzz today with news of all flavors including updates on the tragedy in Boston. Those events have caused the U.S. Senate’s “Gang of Eight” to postpone their scheduled press conference on their compromise immigration legislation, but a rough outline of the proposal has been circulating on the Internet. Below we highlight some of the elements that are most important for our clients.

The document is very much a rough draft and further clarification will be needed to understand what is meant by some proposals. Moreover, it is the case that whatever is being proposed in this document is only an opening bid. The U.S. Senate could amend this legislation before passing it, and the House of Representatives will also weigh in with its own proposal. Final legislation would have to represent a merger of those two ideas.

Here are some key highlights as we understand them:

  • Attainment of Lawful Status

The outline describes a new status for undocumented immigrants known as Registered Provision Immigrant (RPI). To qualify for RPI status one must have been physically present in the U.S. prior to December 31, 2011 and continuously since then. One cannot be inadmissible for criminal, national security, public health, or “morality” grounds and cannot have criminal history that includes a felony, federally defined “aggravated felony,” 3 or more misdemeanors, any foreign conviction, or who has unlawfully voted.

To attain RPI status one would have to pay a $500 fine and “assessed taxes” in addition to any processing fees.  The status would be renewable in six-year increments with a $500 fine each time. Individuals would have one year from enactment to file for RPI status (possibly extended to two years).

RPI status would also be available to individuals who were deported for non-criminal reasons prior to December 31, 2011 if they have family in the United States. It is unclear what this means for individuals deported after December 31, 2011 – they seem not to qualify for either version of RPI.

  • Merit-Based System/Visa

All RPI individuals will have to adjust status to Lawful Permanent Residence through a “Merit-Based System” that takes into account an applicant’s education, employment, and ties to the country among other factors. Between 120,000 and 250,000 merit-based visas would be allocated per year. The terms “Merit-Based System” and “Merit-Based Visa” are both used and it is unclear if these are different concepts or the same thing called by different names.

This pathway to citizenship would not open until border security measures have been deemed successful, existing family- and employment-based backlogs are cleared, and applicant must have been in RPI status for ten years, have paid taxes and worked regularly, demonstrate knowledge of U.S. civics and history, and pay a $1,000 fine.

It is not explicit in the outline but potentially individuals could obtain RPI status for a time and then utilize another aspect of the immigration system (e.g. the traditional family-based system) to obtain Permanent Resident status.

Conflicting language is used regarding the relationship between the Merit-Based System and the options for DREAM Act and AgJOBS immigrants. Do they get their own path or will they enter the Merit-Based System?

  • DREAM Act and AgJOBS

The outline refers to the DREAM Act but does not explain which version of that proposed legislation would be used. DREAMers would become eligible for Lawful Permanent Residence after five years in RPI status and could immediately naturalize as U.S. citizens.

The proposal also absorbs the AgJOBS legislation permitting undocumented farm workers to obtain an Agricultural Card. The specifics of this Card are not available in great detail. To qualify one would have to pay a $400 fine, pay assessed taxes, and have a clean criminal history. After five years in AgJOBS status individuals could adjust status to Lawful Permanent Residence.

  • Family-Based Immigration

The outline states that it will clear out the backlog of family-based immigration but it is not clear if this will be done by increasing visa levels or by simply closing the line and letting time run its course. No new F-4 (siblings of U.S. citizens) applications will be accepted 18 months after the law is enacted. The current F-2A category will become part of the immediate relative category, and the IR category appears to be expanded to include derivatives of IRs. The F-1, F-2B, and F-3 categories will be reshuffled in ways that are not entirely clear but which appear to make use of the V Visa (permitting certain individuals to live and work in the U.S. while they await visa availability) and which cut off future immigration of married sons and daughters who are over the age of 30.

Turning F-2A individuals into IRs and retiring the F-4 category will help clear the backlog and these newly available visas will be shared among employment- and family-based categories. It is not obvious how the math would work out and if these measures alone (as opposed to raising the visa caps) could clear the backlogs in 10 years or less.

  • The Border Trigger

Six months after enactment of the legislation, two related border security policies must be created and begun. No undocumented individual may receive RPI status until these policies are in effect. Successful implementation of these policies will also be a requirement before RPI individuals (other than DREAM or Agricultural workers) can obtain Lawful Permanent Residence. The outline also authorizes billions of dollars in expenditures to increase border surveillance, speed up removals at the border, create a multi-layer border fence, and for other border security measures.

  • E-Verify

The use of E-Verify would become universal over a five-year period. All non-citizens would be required to retain a biometric-based employment authorization document in order to seek employment. U.S. citizens could use U.S. passports or state driver’s licenses for proof of employment authorization (as long as those state DMVs share photo-capture information with DHS).

  • High-Skill Labor

The outline scraps the existing Diversity Visa system that permits immigration from historically underrepresented countries and in its place increases opportunities for high-skilled workers and entrepreneurs. Caps on H-1B visas will be tweaked to make them more fluid to match labor conditions and to cut down on abuse. H-1B visas could nearly triple over time. Those who come on student visas for bachelor’s degree or higher programs will receive dual-intent visas (making it easier for them to choose to live permanently in the U.S.).

  • Low-Skill Labor

A guest worker program (the W Visa) will be created for individuals who live in a foreign country to come to the United States to work for three years at a time. Such individuals could bring their spouses and children with them and travel would be permitted. Principal W Visa workers may not be unemployed for more than 60 consecutive days but they may seek other job opportunities as well as promotions to higher-skill positions after 1 year with an employer. Employers who seek to have W Visa workers must comply with a registration process that must be renewed every three years. The registration process is meant to prevent unscrupulous or abusive employers from using W Visa workers. Policies would attempt to prevent W Visa workers from lowering the wages of native workers and to prevent W Visas from being over-represented in the construction industry.


More than anything, this outline feels like a catharsis. Observers have been pent up for months watching and waiting to see what the pathway to citizenship and overhaul of immigration policy may look like, and now we have a start to that conversation.

Many questions remain, among them:

How will business and labor interests receive the news of the W Visa, the tweaks to the high-skilled labor force, and the overhaul of temporary agricultural workers?

How will immigration advocates receive the requirement that most undocumented individuals wait 10+ years, master English and U.S. civics, and prevail in a competitive points-based system in order to attain lawful immigration status?

How will the public view the new approaches to employment- and family-based immigration?

Will the availability of waivers be expanded to cover the many circumstances not provided for in this draft legislation?

How can skilled immigration practitioners navigate between existing and new systems to help clients attain lawful immigration status, reunite families, and move forward on a pathway to citizenship?

As details emerge and answers to those questions reveal themselves we will keep our readers appraised.


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Filed under Advocacy, Comprehensive Immigration Reform, Employment-Based Immigration, Enforcement, Family-Based Immigration, National News, Undocumented Immigrants

Too talented to immigrate?

Today during our walk-in services we met with a talented young woman from Poland who would like to become a Permanent Resident of the United States. The problem is that, in some sense, she is too talented to immigrate.

This particular woman first came to the United States as an exchange visitor and attended the second half of high school here. She then obtained F-1 and J visas to complete her undergraduate and master’s degree studies. She is now working on an H-1B visa for a program that helps place international students and she earns about $45,000 per year.

In theory, she could get in line for an employment-based immigrant visa classification, which is a system that functions somewhat similarly to the family preference system for family-based immigration. But part of that process involves having an employer file an I-140 and a Department of Labor Certification, which requires that the foreign employee be paid at a level on par with the prevailing wage in that industry for employees with comparable skills.

The problem is that the prevailing wage for this woman’s skillset has been calculated to be over $90,000, twice what she is being paid.  Because of this, the conversation about an employment-based Permanent Residence is a virtual non-starter. There are other, more arcane paths (e.g. L or E visas) to Permanent Residence, but they rely on exploiting loopholes and further delaying the stability and clarity that this young woman seeks.

Despite her talents, her vision for a better world, and her long-term attachment to this country, this young woman is likely to either leave the United States and take her talents elsewhere or remain in an in-between immigration status (she is contemplating a new F-1 visa to complete a Ph.D.) until she meets and marries a U.S. citizen man. She has no immediate family in the United States, so marriage is her only realistic entry to the family-based system.

This is yet another example of why the immigration system — including the legal immigration system — needs reform. Prevailing wage rules are not without merit, but we have to find better ways to retain the talented people who we attract to this country. It seems that the worst thing we can do — both to these folks and to ourselves as a collective — is to invest resources in educating them, creating professional and emotional attachments to this country, and then providing no realistic opportunities for them to share their talents with us.

It cannot be overstated that our system of authorized immigration is as ripe for reform as is the flow of unauthorized immigration. The hope is that as more people become aware of the twin shortcomings of these systems we can find the political space to reform them both.

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Filed under Employment-Based Immigration, Uncategorized

H-1B work visas hit ceiling unchanged by Congress in years

If you’ve been paying attention to jobs reports over the last year, you’ve heard some common themes again and again: large corporations are sitting on trillions in cash but worry that consumer demand will slump; manufacturing is rebounding in some areas but exports are weak due to European uncertainty; growth in China and elsewhere is starting to slow; and while too many Americans are out of work, employers can’t find enough qualified applicants to fill jobs in programming, engineering, and the other skilled positions.

One solution to the last of these problems is foreign workers. Through the late 1990s and early 2000s when the tech industry was booming, no one blinked much as talented programmers and engineers came from the top schools in India and other developing countries and filled demand for positions many native workers couldn’t perform. According to the Brookings Institution, Congress raised the cap on available H-1B visas in late 2000 from 115,000 to 195,000 to absorb this influx of foreign talent. In fact, this flow of labor became so robust that Congress then tamped down on the number of available H-1B visas for skilled workers, sending the cap plunging down to 65,000 in 2004.

In 2006 another 20,000 H-1B visas were made available for graduates of U.S. universities, but since then the number has been unchanged. This year the H-1B cap was reached after about 10 weeks, which Business Week reports suggests an uptick in economic growth for this year. When employers are not able to squeeze their chosen workers into the H-1B framework, they often turn to loopholes available through other forms of working visas. The effects are dually that the costs of doing business increase and some talented workers aren’t connected with the companies that seek them, and both effects impair the efficient churning of the economy.

It’s no secret that the issues of unauthorized immigration are thorny, but H-1Bs are a form of legal immigration. That even this aspect of our immigration system remains in gridlock speaks volumes about the stasis that prevents improvement of our broken immigration system. Lawmakers on both sides of the political spectrum have, at times, put forth common-sense proposals for addressing the many quirks and anachronisms of the employment-based immigration system, but movement on these consensus issues is blocked by refusal to seek compromise on the most contentious issues. Rightly or wrongly, many advocates for comprehensive immigration reform are wary of finding common ground on marginal issues because these small victories may come at the cost of wide-ranging reforms.

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Filed under Employment-Based Immigration, National News