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Changes in immigrant visa system proposed by S. 744

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By Attorney Jim Gother,

Global Immigration Partners

The Senate Immigration Bill proposes a number of major changes to the lawful immigration process.

Quotas: Single State 7 percent limit: The new legislation proposes to eliminate  the employment-based “per country” quota. Presently, this quota limits nationals of any single country from using more than 7 percent of the worldwide quota. The new legislation will  eliminate this limit and everyone in the world will be subject to a  single, worldwide quota for each preference classification.

Realignment of preference category quotas: Presently, the law provides a guarantee of 120,000 visas for the three principal employment-based classifications with each getting 40,000 visas, plus those unused by higher classifications.

The new law proposes to exempt employment-based first preference applicants from the quota entirely. The second and third preference categories would each  be guaranteed 56,000 visas annually.

Additional quota exemptions: Beyond exempting EB first preference applicants from the quota, the new legislation would also exempt all dependents of EB principal applicants, applicants who have earned doctoral degrees and foreign physicians who have obtained waivers of the two year               home residence require- ment.

These additional exemptions are highly significant. Presently, the State Depart-ment uses a multiplier of 2.1 for employment-based cases. That is, they know that each approved I-140 will use 2.1 immigrant visas from the quota when dependents are included. To put this into perspective, the present EB third preference is limited to 40,000 visas a year. Out of this number only about 19,000 visas are used for principal applicants and the rest are used for dependents. Under the new law, all 56,000 will be used for principals as dependents will not be counted against the quota at all.

Keep in mind that there will only be one column for visa availability in the Visa Bulletin after the new law takes effect. China, India, Mexico, and the Philippines will all be folded into the Worldwide column.

The likely effect of this change will be that worldwide EB2 will become “current” for applicants from China and India (as well as everyone else) and remain that way into the future. EB3 will move forward for everyone, but due to the very large numbers of Indian EB3 cases with very old priority dates, the new Worldwide date shouldn’t move much beyond 2009 in the next fiscal year.

Visa recapture: The new   legislation proposes to recapture about 350,000 employment-based immigrant visas that were wasted by bureaucratic incompetence. This provision will not take effect until October 1, 2014. Once it takes effect, all employment based quota backlogs will be eliminated immediately and both EB2 and EB3 will become “current” and remain that way for years into the future.

Dependents of green card holders: The new law proposes to make spouses and un-married children (under age 21) “immediate relatives.” This means that the current family-based 2A category will be eliminated and those beneficiaries will be treated as quota exempt immediate relatives. There will no longer be a waiting line for dependents of green card holders.

Other changes to employment based immigration: Labor certification fee: Employers will have to pay a $500 “STEM education fund” fee when they apply for foreign labor certification. This is similar to the H1B ACWIA fee.

Advanced degree in a STEM field: Individuals, who graduate from certain US schools with STEM degrees and  apply for immigrant preference classification within five years of graduation will  be able to apply for immigrant status without being subject to the quota. They must have a job offer from a US employer, but this likely means just a job offer and not a PERM.

Changes to family-based immigration: Modification of the single state limit: Presently, nationals of a single country may not use more than 7 percent of the worldwide quota. The new legislation will change that to allow up to 15 percent usage. This will benefit Mexico and the Philippines by more than doubling their quota allocation. This will slow down and even cause retrogression of cutoff dates for family based applicants from everywhere else in the world.

Elimination or modification of family-based categories: The family-based 2A category will be eliminated and persons who would otherwise qualify for it moved into “immediate relative” status. These applicants will no longer be subject to visa backlog delays.

The family based first, second, third, and fourth preference categories will be eliminated and replaced with two new main categories: Sons and daughters of citizens and sons and daughters of residents.

The category for siblings of US citizens will be eliminated entirely within 18 months. That is, visas may still be issued for 18 months following enactment. After that, no additional visas will be issued to siblings of US citizens.

The current family-based first preference category will become the new F1A category. Eligibility criteria will remain the same.

The current family-based third preference category will become the new F1B category and visas will only be available to individuals for whom I-130 petitions were filed before the beneficiary’s 31st birthday.

The current family-based 2B category will become the new F2 category. The eligibility criteria will remain the same.

“Merit-based” immigration: In addition to the revised family and employment-based categories, the new legislation creates two “merit-based” immigration paths. Initially 120,000 visas will be available each year, with increases based on demand up to a maximum of 250,000 visas.

Merit-based track one: The new merit-based track one takes effect on the first day (October 1) of the fiscal year following enactment. Half of the available visas will be given to “tier 1” applicants and the other half to “tier 2” applicants. Tier 1 grants points for such things as education, employment experience, employment-related to education, entrepreneurship, high demand occupation, civic involvement, knowledge of English, whether the applicant is the sibling of a US citizen, age, and country of origin.

Applicants with the highest number of points will be given visas.

Merit-based track two:  This track takes effect October 1, 2014. This is primarily designed as a backlog reduction plan for existing employment and family based applicants. The idea is that by 2021, all employment and family-based backlogs will be eliminated.