News & Events

The "Status" of Immigration Reform

By: Misty Wilson Borkowski

Submitted by Firm:
Cross, Gunter, Witherspoon & Galchus, P.C.
Firm Contacts:
Abtin Mehdizadegan, J. Bruce Cross, Misty Wilson Borkowski
Article Type:
Legal Update

On May 21, 2013, the Senate Judiciary Committee finalized S. 744, the Senate Bill containing the various provisions of reform of current Immigration laws. After five days of committee revisions, the Committee successfully voted the final bill as amended to the floor of the Senate on a 13-5 vote. The legislation survived the entire markup process with most of its major provisions in place as the four Senators representing the “Gang of Eight” on the committee stuck to their commitment to resist any changes to the core provisions of the bill.

The bill was not just the brainchild of Democrats, but a bipartisan committee of eight drafted the bill, which are unofficially referred to as the “Gang of Eight.” It comprises the leaders of both the parties in the House and the Senate, and the chairs and ranking minority members of the Senate Committee and House Committee for Intelligence. The bill is also called the Border Security, Economic Opportunity, and Immigration Modernization Act; the JOLT Act of 2013. It has passed the Senate Judiciary Committee, and is now headed for a vote in the Senate where 60 votes are required for passage. After this, the bill will go to the Republican dominated House, where the passage would be even more difficult. Even though the Judiciary Committee debated the bill at length, there is already a deep disquiet within the Republican fold over the fact that most of the amendments proposed by the Committee were rejected. Senator Ted Cruz and three other GOP members were miffed enough to write a 5-page open letter to the bill drafters. They charged that the Republican members of the Gang of Eight have effectively colluded with the Democrats to block any meaningful amendment to the bill. Their main objection to the bill is that it would offer a path to citizenship to the nearly 11 million illegal immigrants who came to the U.S. before 2012.

The bill, as currently drafted, is going to make major improvements in the lives of 11 million aliens who will benefit from it. The main provision of the bill, and the one which is generating the most opposition, is that it would offer a path to citizenship to 11 million illegal immigrants who came to the U.S. before 2012. The bill gives one year to undocumented immigrants to apply for Registered Provisional Immigrant Status (RPI). It would grant them legal status and ability to travel outside the U.S., but not eligibility to any public benefits, including participation in Medicare under the Affordable Care Act. The provision will also cover the spouse and children of the applicant. After 10 years, a person with RPI would be eligible for a green card. Three years after that they can apply for citizenship. All this assumes that the applicant has no serious criminal record, has worked regularly, paid his/hers taxes and has learned English.

The following are some of the other keys provisions in the current version of S.744:

  • Border and interior enforcement: The new Senate bill has a more comprehensive approach to the border and interior enforcement provisions (including mandatory, enhanced E-Verify).
  • Increases number of H-1B Visas: Raises the base cap of 65,000 to 110,000 (increases the exemption for advanced degree graduates in science, technology, engineering and mathematics from U.S. Schools to 25,000). In future years, the cap may go as high as 180,000 based on two factors plugged into one formula known as the “High Skilled Jobs Demand Index” (with each factor weighed at 50%):
    • 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%)
    • 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 data (50%).
  • New W visa, for lower-skilled workers when the economy is growing: Under the provisions of the bill, a new statistical agency will be created within the Department of Homeland Security (DHS) to regulate the W visa program. This new agency, called the Bureau of Immigration and Labor, will determine the annual cap for W visas, and will determine the list of recruitment methods employers may use. It will also conduct surveys to assess shortages in occupations by job zones, and conduct studies on employment-based visa programs. The Bureau will make annual recommendations to Congress in order to improve such programs.
    • Spouses and minor children of W visa holders will be admitted to the U.S. for the same period as the visa holder and will be given work authorization. This solution is critical to ensuring that dependents have the opportunity to incorporate into the formal economy. By easing family unification, this provision also minimizes the likelihood of undocumented immigration of family members of W visa holders.
  • Clear the system backlog: Under track two of the merit-based system, an alien who is a beneficiary of a petition for an employment-based or family-based immigrant visa and who has not been awarded a visa in 5 years after the petition was filed is eligible for a visa under track two of the merit-based system. This will provide applicants with clear expectations in terms of the time they will have to wait in order to enter the country through legal channels.
  • Merit based visas (new point system): 125,000 visas will be available per year and will be based upon points awarded for education, employment and length of residency.
    • Half allocated to lower skilled immigrants: After enactment of the bill, between 60,000 and 125,000 visas will be available each fiscal year for immigrants in high-demand tier-2 occupations (1 of the 5 occupations for which the highest numbers of positions were sought to become registered positions by employers during the previous fiscal year) or in an occupation that requires little or no preparation. The initial threshold of 60,000 visas will increase by 5% per year if demand exceeds supply in any year where unemployment is under 8.5%. This will allow workers who currently do not have a real chance to get a green card to access lawful permanent resident (LPR) status in the future. This is important considering that the country needs immigrants at all skill levels.
  • Cap for employment-based immigrant visas allocated to “other workers” will be raised: In the current system, only 5,000 visas are available for “other workers”—namely, persons capable of filling permanent positions that require less than two years of training or experience. These visas are part of a larger pool of visas called Employment-Based Category 3 (EB-3), which also includes visas for skilled workers and professionals. S.744 raises the cap for EB-3 from 28.6 percent to 40 percent of the worldwide employment-based level. At the same time, it removes the cap for the EB-3 “other worker” subcategory. Although the way in which visas will be allocated in practice among the different subcategories of EB-3 is yet to be seen, this change creates an opening for a much-needed solution regarding the legal incorporation of less-skilled immigrants.
  • Changes in some family quotas:
    • Spouses and minor children of LPRs will have an expedited process: Because the bill reclassifies spouses and minor children of LPRs as immediate relatives, these family categories will not be subject to annual quotas anymore. This will provide relief to people who, under current law, have to wait “in line” for a long period of time in order to legally bring their immediate relatives to the country. Although partial, this is a first step in addressing some family unification issues. Consequently, this proposed change would serve as an additional incentive to avoid illegal immigration based on family separation issues.

The new Senate bill includes mechanisms to assure that future flows of immigrants (a) are absorbed through legal channels; (b) respond to the needs of the economy; (c) embrace (at least to some extent) family unification; and (d) have the flexibility to adapt to different scenarios in the future.