Today, the American Immigration Lawyer's Association (AILA), has released an outline of the Immigration Reform bill being crafted in Congress. The bill, known as the Border Security, Economic Opportunity & Immigration Modernization Act of 2013 (BSEOIM) is still in its early stages and there will undoubtedly be several modifications before the bill's passage into law.
A 17-page outline was released by AILA today. Here, I am listing some of the key components that will likely be of greatest interest to employers of high-skilled international individuals. I understand that some of the items listed below are not entirely clear, but we should learn more about these in the days and weeks that follow.
H-1B Visa Reform
We will raise the base cap of 65,000 to 110,000 (we amend the current 20,000 exemption for U.S. advanced degree holders to be a 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 cap will increase/decrease in the following way:
a. It will be based on two factors plugged into one formula known as the "High Skilled Jobs Demand Index" (with each factor weighed at 50%):
i. The percentage by which cap-subject nonimmigrant visa petitions approved under section 101(a)(15)(H)(i)(b) for a fiscal year exceeds/fails to meet the cap (50%)
ii. The inverse of the percentage increase/decrease between the previous fiscal year and the current fiscal year in the number of unemployed persons in the "management, professional, and related occupations category" of BLS (Bureau of Labor Statistics) data (50%).
b. The most the cap can increase/decrease by each year is 10,000 visas.
We 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).
We will 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.
We will establish a 60-day transition period for H-1B workers to change jobs.
We will provide dual intent visas for all students who come here on bachelor's degree programs or above.
We 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.
We will also 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 guestworkers 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%.
We require recruiting of American workers prior to hiring an H-1B nonimmigrant. The Secretary of Labor must establish a searchable website for posting H1B positions. The site must be operational and online within 90 days of the passage of the new law. We require employers to post a detailed job opening on the Department of Labor's website for at least 30 calendar days before hiring an H1B applicant to fill that position.
We bar employers from recruiting or giving preference to H-1B or OPT workers over American workers.
We establish significant new authorities and penalties to prevent, detect, and deter fraud and abuse of the H-1B and L-1 visa systems by fraudulent employers.
U.S. Permanent Residence Proposed Changes
The bill eliminates the backlog for family and employment-based immigrants (see below discussion of merit-based system).
On the employment green card categories, the bill exempts 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.
The bill then allocates 40 percent of the worldwide level of employment-based visas (140,000 annually) 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.
The bill increases 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.
The bill creates a startup visa for foreign entrepreneurs who seek to emigrate to the United States to startup their own companies.
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.
Long -term alien workers and other merit based immigrant workers includes those who have been lawfully present in the United States for not less than ten years and who are not admitted as a W visa under section 101(a)(15)(W) of the Act.
1. Mandatory, Enhanced E-Verify: All employers will be required to use the E-Verify system over a 5-year phase-in period. Employers with more than 5,000 employees will be phased in within 2 years. More than 500 employees will be phased in within 3 years. All employers, including agricultural employers, will be phased in within 4 years.
2. Photo matching: As part of the E-Verify system, every non-citizen will be required to show their "biometric work authorization card," or their "biometric green card."
These photographs will be stored in the E-Verify system. In order for the non-citizen to be cleared for a job, the picture on the card presented by the employee to the employer will have to exactly match the identical picture the employer has on the E-Verify system. The employer must certify that the photograph presented in person matches the identical photograph in the system