Senate
Proposal Fails Test Vote
7 Jun
2007
After a test vote Thursday evening
prevented finalization of the Senate
proposal on comprehensive immigration
reform, the bill was withdrawn. Sponsors
may re-introduce the bill at a later
time, although this seems unlikely
given the time spent and the relatively
short time the Senate has to reconsider
the proposal.
Proposed
Senate Legislation: Immigration Reform:
Summary
30
May 2007
In
May 2007 the U.S. Senate made public
a proposal to introduce major reform
of U.S. immigration law. This involves
a complete change of focus from the
current family and employment based
immigration system to a "merit-based,"
points scheme similar to that employed
in other English-speaking countries
(e.g., Australia, Canada, the United
Kingdom).
The
new points system would emphasize
formal education in particular fields
over family ties and employer sponsorship.
In the proposed "merit"
system, points would be weighted toward
applicants in high-demand occupations
such as science, technology, engineering
and mathematics (STEM), with substantial
points also allotted for formal education,
particularly in STEM fields. Additional
points may accrue for experience working
for a U.S. employer, job offer from
a U.S. employer, English ability,
with a smaller number of points allotted
for factors including family ties
and age.
The nonimmigrant or temporary visa
category would remain largely in place
with some significant alterations,
while the employment-based immigrant
categories and labor certification/PERM
process would be entirely replaced
by a points system. The Diversity
Visa Program (Green Card Lottery)
would be eliminated. In response to
heavy criticism from U.S. companies
and charges that the points system
is in actuality a giant diversity
visa lottery rather than a market-oriented,
merit-based system, amendments may
be introduced to create a parallel
employer sponsorship system alongside
the points system.
No
provision exists in the proposed points
system for persons who qualify under
current U.S. law for the first preference
extraordinary ability (must show evidence
that applicant is at the "very
top" of his/her field) or multinational
executive (transferees from overseas
companies to related U.S. companies)
category. In fact the new system contains
no provision at all for consideration
of quality—of education, achievements
or experience: a PhD from MIT or Harvard
would be considered the same as a
PhD from the lowest-rated program;
a Nobel Prize winner would be treated
the same as a new university graduate
(in fact, given the small number of
additional points awarded for age,
the new university graduate may well
fare better than the Nobel Prize recipient).
We note also that other countries
who employ the points system, including
the UK and Australia, each have provisions
for leaders and high achievers. Persons
without formal education—even
the highest achievers in literature,
the arts and business, for example—may
be entirely shut out of the green
card process, unable to ever obtain
permanent residence in the United
States.
The Senate proposal also creates
the "Y visa," a category
for unskilled workers (largely agricultural,
hospitality and food industries).
This would allow successful applicants
entry into the U.S. for two-year work
stints. The Y category would become
valid only when triggered by certain
border security and employer verification
measures included in the proposal.
Finally, the proposal imposes severe
new penalties against illegal border
crossings and overstays, as well as
against employers for noncompliance
with immigration requirements.
Proposed
Points System
The
proposal presents the following points
scheme for obtaining permanent residence
in the US. Note that the points scheme
makes no particular provision for
persons of extraordinary ability in
their fields of expertise (currently
the employment based first preference,
or EB1, category), no provision for
the quality of an applicant's education,
experience and/or achievements, and
no provision for multinational executives
(executives and/or managers transferred
to the US from related employer abroad;
currently EB1), and neither requires
nor involves employer sponsorship.
| CATEGORY |
DESCRIPTION |
MAX
POINTS |
| EMPLOYMENT |
47
max
|
| Occupation |
US
emplymt in specialty occupation
(as defined by Dept of Labor)—20
pts |
|
| US
emplymt in high demand occupation
(30 occupations that have
grown the most in the preceding
10 year period, as determined
by Bureau of Labor Statistics)—16
pts |
|
| National
interest/ critical infrastructure |
US
employmt in STEM or health occupation,
current for at least 1 yr (extraordinary
or ordinary)—8 pts |
|
| Employer
endorsement |
US
employer willing to pay 50% of
legal permanent resident's application
fee either (1) offers a job; or
(2) attests for a current employee—6
pts |
|
| Experience |
Years
of work for US firm—2
pts/yr (max 10 pts) |
|
| Age
of Worker |
Worker's
age: 25-39—3 pts |
|
| EDUCATION
(terminal degree) |
MD,
MBA, Graduate Degree, etc—20
pts |
20
max
|
| Bachelor's
Degree—16 pts |
|
| Associate's
Degree—10 pts |
|
| High
school diploma or GED—6
pts |
|
| Completed
certified Perkins Vocational Educ.
program—5 pts |
|
| STEM,
associates and above—8
pts |
|
| English
and civics |
Native
speaker of English or TOEFL score
of 75 or higher—15 pts |
15
max
|
| TOEFL
60-74—10 pts |
|
| Pass
USCIS Citizenship Test in English
and Civics—6 pts |
|
| Extended
family
(applicable if threshold of 55
in above categories) |
Adult
(21 or older) son or daughter
of US citizen—8 pts |
10
max
|
| Adult
(21 or older) son or daughter
of legal perm resident (LPR)—6
pts |
|
| Sibling
of US citizen or LPR—4
pts |
|
| If
had applied for family visa in
any of above categories after
May 1, 2005—2 pts |
|
| TOTAL |
|
100
|
Nonimmigrant
Business and Student Visas
Although the proposal keeps nonimmigrant
categories in place and increases
the annual quota on some visa types
(e.g., the H1B), it places new burdens
on the H1B and the L1 intracompany
transfer categories and eliminates
"dual intent" (permission
to work temporarily in the U.S. while
simultaneously seeking permanent residence)
for each of these—suggesting
that to apply for permanent residence,
persons holding H and L status would
have to first return home.
The annual quota on H1B visas would
rise to 115,000 from 65,000, with
a "market-based" provision
allowing for up to 180,000 annually
in certain circumstances. However,
a recent amendment to the bill imposed
a hefty $5000 fee on H1B filings (bringing
H1B government fees to approximately
$6000 per application, plus any additional
legal fees and other expenses—bringing
the total near $10,000) as well as
new education requirements for H1B
beneficiaries (which would also extend
to Australian beneficiaries of E-3
visas)--provisions which would severely
disadvantage small, start-up and possibly
non-profit companies (if non-profits
are not exempted from additional fees
in the final bill). Companies with
more than 50 employees would be allowed
a maximum of 50% of employees holding
H1B status, and employers would be
prohibited from advertising specifically
for H1B workers.
The proposal also imposes new attestation
requirements on all H1B employers
that are now required only of employers
deemed "H1B dependent" (i.e.,
companies with large numbers or a
large percentage of H1B workers) as
well as new investigative powers for
both the Department of Labor and the
Department of Homeland Security.
In addition, the proposal imposes
new restrictions on new U.S. entities
who sponsor employees on L1 intracompany
transfer visas.
On a positive note, it would increase
optional practical training time for
F-1 student visa holders from 12 to
24 months, among other possible changes,
such as allowing "dual intent"
(allowing one to apply for permanent
residence while holding temporary
status; F-1 students currently must
show they intend to return to their
home countries).
New
Nonimmigrant Work Visas
The proposal would create a new "Y"
visa category (limited to 200,000
per year) for unskilled workers in
primarily agriculture, restaurant,
hotel and other food services industries.
Validity of the Y visa category would
be contingent upon certain provisions
in the new legislation, called "triggers,"
including new border security and
employer verification measures. Applicants
for Y visas would be required to return
to their home countries following
two-year periods of work in the U.S.
Y visa holders who fail to abide by
the category's return or "touch-back"
requirements would face a permanent
bar to obtaining future U.S. immigration
benefits.
However, neither the proposal nor
existing legislation that would remain
following any future enactment would
provide much opportunity for Y holders
to obtain legal permanent residence
or U.S. citizenship, although the
proposal does create a category of
10,000 "exceptional" Y-3
workers who would be eligible to obtain
permanent residence through the new
points system.
Family
Categories
Existing immigration laws allow sponsorship
of certain relatives by U.S. citizens
and legal permanent residents. These
currently include parents of citizens,
spouses and children of citizens and
LPRs, and siblings of LPRs.
The proposal would eliminate the
first, second, third and fourth preference
family categories as well as the option
for citizen sponsorship of parents
as immediate relatives (immediate
relative status allows admission without
quotas). Spouses and minor children
of citizens will continue to qualify
as immediate relatives; a proposed
amendment would include spouses and
minor children of legal permanent
residents in the immediate relative
category.
However, parents of US citizens would
no longer qualify as immediate relatives
(which means they are not subject
to an annual quota, but immediately
qualified to apply for permanent residence),
but would be placed into another category
with a limit of 40,000 per year (proposed
amendments seek to increase this number).
Other family members would have to
reapply under the points system unless
they had filed family-based petitions
under the current rules prior to May
1, 2005.
The proposal creates a new nonimmigrant
visa category for parents of US citizens
and parents of Y visa holders which
would allow visits of up to 30 days,
and which would require a bond of
$1,000 to guarantee compliance with
the terms of the visa. The proposal
also imposes strict penalties on both
sponsors and parents should the parent
visa beneficiary not adhere to visa
terms.
In short, under the proposed system,
immigration to the U.S. based on direct
family ties will become much more
limited, and relatives will have to
qualify independently for permanent
residence based on the proposed points
system.
Legalization
of Undocumented Persons
The proposal also provides for legalization
of an estimated 12 million undocumented
persons present in the U.S. on or
before January 1, 2007, through a
new "Z visa" category, which
would give qualified undocumented
persons probationary status to live
and work legally in the U.S. This
category would require fines of $5000
per Z visa applicant, and would also
require heads of household to return
to their home countries first before
making a Z visa application ("touch-back"
requirement). Since the legislation
contains provisions to clear current
backlogs prior to allowing undocumented
persons to obtain permanent residence,
it would take an estimated 8 to 13
years for Z visa holders to obtain
permanent residence.
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