S 1348 ANALYSIS OF DRAFT VERSION
Immigration Voice detailed analysis of portions germane to skilled
immigration in title 4 and title 5.
Note: This analysis is based on the draft obtained late on Friday 5/19/2007. There could
be minor changes in the final version of the bill when it is debated on 5/22.
TITLE 4:
Non-Immigrant Visa Reform.
Section 418. Student Visas.
(a). (1) OPT card codified to a maximum of 24 months. Work done on OPT during
vacations like summer vacation will be counted towards 24 months and all OPT work
permit would end after 26 months of completion of coursework.
(2) and (3) would create a new F4 visa for those who want to do masters or higher in
STEM and in F4, the applicant does not have to prove non-immigrant intent at the
consulate like they have to do under F1 and F2 visas.
(b) (1) Student visa holders F1, F2, F4 etc can work off-campus for 20 hours during
semester and 40 hours during break. Such employment must be with prevailing wages.
The employer must do an effort to recruit citizens for 21 days prior to hiring a student.
(2) If employer hires a student and violates law, he would be barred from hiring
student visa holders for 5 years.
(3) Social security tax and payroll tax provisions regarding work done on student
visa.
(c) All non-immigrant visa applicants like H1; L1 and V visas shall be presumed to have
immigrant intent.
(d) Visas shall not be rejected for H1, L1 and F4 if you have filed for GC and the fact
that you have filed for GC shall not work against you to get H1, L1 and F4.
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Section 419: H1 Quota and H1 extensions.
(a) H1B quota will be 115,000 for fiscal year 2008. After that it will be 180,000
(However this part about 180,000 is unclear and we are awaiting final text as the
draft version looks incomplete). The adjustments will be subject to new rules of
adjustment regarding 1400 H1s for nationals of Chile as per US – Chile trade
agreement and 5,400 for nationals of Singapore as per US – Singapore Free Trade
Agreement.
(b) You need a bachelors degree for H1B and you cannot get it just by having
“theoretical and practical application of a body of highly specialized knowledge”1
(c) H1B cannot be extended beyond six years unless GC petition is pending for 365
or more days and hasn’t been denied under EB1. However, it’s not clear whether
EB1 here means the old definition of EB1 or the new definition of EB1.
(d) Separately it states that you can extend your H1 beyond 6 years only if you have a
petition pending under EB1 for 365 or more days in one-year increments. They
are amending the INA to put the provisions regarding H1 extensions beyond 6
years in INA itself. Right now, the provision of 7th year and beyond of H1 exists
in AC21 act. They are repealing those 2 clauses from AC212. The big difference
is that AC21 had 2 ways to extend H1 beyond 6 years -- either 365 days after
labor certification filing or 365 days after 140 filing or an approved 140. With this
proposed law, you have to have a pending 140 for 365 days or more or an
approved 140. Pending labor filed 365 days ago or longer wont be sufficient for
filing H1B extensions beyond 6 years. This can adversely affect those stuck in the
nightmare of Philadelphia and Dallas backlog centers.
Section 420: H1B employer requirements. (Durbin-Grassley bill)
(a) Non-Displacement clauses now apply to all employers: In the INA, there is a class
of employers who are defined as “H1B dependent employers”3 who are today
subject to certain conditions when hiring H1B employees and certain conditions
when placing them at client site. Under the proposed bill, the non-displacement
clause applies to every employer, not just H1B dependent employers. This section
eliminates that definition of “H1B dependent employers” and treats all employers
as the same and makes them subject to the same non-displacement clause that
today only applied to H1B-dependent-employers.
1
Paragraph (2) of section 214(i) of the Immigration and Nationality Act (8 U.S.C. 1184(i))
2
106(a) and 106(b) of the American Competitiveness in the Twenty-First Century Act of 2000
3
8 U.S.C. 1182(n)(3)(A).
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Placement of employees at client site(Consulting business practices): Under the
proposed bill one cannot place H1B employees at another employer’s site
(common in consulting business) whether you are H1B-dependent-employer or
not. Today, the law places that restriction only on H1B-dependent-employers.
This proposed law applies that restriction of outplacement on all employers across
the board.
(b) It increases the date of non-displacement from 90 days to 180 days. This means
that you cannot hire H1B on a position for 180 days before or after a citizen is
fired.
(c) You cannot put advertisements for jobs and state that you will hire only H1Bs or
that you will prefer H1Bs. Such advertisements are illegal with this section.
(d) If you have 50 or more employees in your organization, then you cannot have
H1Bs in more than 50% positions. If you have 49 or lesser employees, then you
can have 50% or more positions filled with H1Bs.
Section 421 – 424: (Durbin-Grassley bill). H1B Government authority and
requirements, L1 visa abuse and fraud protection, whistleblower protections, and
restrictions on L1 petitions for startups.
Section 425: Conrad program and medically underserved areas.
(a) Permanent authorization of Conrad Program. A positive step, as many rural areas
have doctors only because of this Program, and re-authorizing this for limited
periods is a burden on those areas
(b) Pilot Program for additional Conrad slots in some states. Beneficial for some
states that need more doctors for a larger population, viz. CA vs. WY
(d) Thru (g) – Residents cannot apply for H-1B. Nearly half of the foreign doctors,
especially the brightest ones, get the H-1B rather than the J-1. Result – they do
not have the restrictive clauses of J-1 after finishing their Training. Fact is – most
foreign doctors have good training abroad, and are able ‘to hit the ground running
in all cases’. Now, they will be forced to go thru J-1 Program, and forced to take
jobs in rural areas that American doctors are unwilling to do
(h) J-1 waiver requirement decreased when working for certain health clinics. Period
of waiver service decreased to 2 yrs, from 3 yrs, if physician works for a Federal
Health Clinic or similar organization in an underserved area.
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TITLE 5:
Changing employment based immigration to merits based immigration:
Section 501 (a): Family Based
Until Z visa holders become qualified4 to apply for Greencards (which could be a long
time), family based immigration will get 567,000 each fiscal year.
Section 501 (b) Merit Based
The total number of merit-based green cards is calculated on the following basis:
First five years
Total number of merit-based green cards includes sum of:
a.) First five fiscal years have same number of green cards as made available to EB
category in 2005. This number is 246,878.
b.) Any visa number not used by family based category.
How the total number will be divided between Current system and new merit-based
system and Y visa holders --
- 10,000 (or more) reserved for exceptional aliens under ‘Y’ visa category.
- 90,000 (exactly 90,000 – not more not less) for backlogged (pending or approved I-140
applications). Currently, this number is 140,000.
- Remaining possibly goes to new merits system. Until the merits system is ready for
accepting petitions, the Y visa holders probably get a shot at this since the clause says
“No more than 10,000” – leaving room to let it go up from 10,000 to whatever is left.
From 6th year to until ‘Z’ visa become eligible (when no more FB and EB backlog exist)
140,000 + any visa number not used by family based category.
During this time:
- 10,000 reserved for exceptional aliens under ‘Y’ visa category
- 90,000 for backlogged (pending or approved I-140 applications)
From the year in which ‘Z’ visa holders become eligible (when no more FB and EB
backlog exist)
380,000+ any visa number not used by family based category
During this time: 10,000 reserved for exceptional aliens under ‘Y’ visa category
4
Section 501(a) that redefines 8 U.S.C. 1151(c) of family based immigration
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Temporary Supplemental Allocation:
> For the first five fiscal years when ‘Z’ visa holders become eligible, the numbers
determined by Secretary, DHS from the “First Survey of Z non-immigrants”
> For 6th fiscal year when ‘Z’ visa holders become eligible, the numbers determined by
Secretary, DHS from the “Second Survey of Z non-immigrants”
> Starting 7th year, number of ‘Z’ visa holders who adjusted status in prior fiscal year
- Temporary Supplemental Allocation is terminated when no more ‘Z’ visa applicants are
pending. Temporary Supplemental immigrant visa can be awarded to ‘Z’ visa holder
only. This temporary supplemental would be equal to 20% of total Z visa holders. If there
were 11 million undocumented aliens, then the annual quota would be 2.2 million per
year.
- This section is effective on the 1st date of subsequent fiscal year
Section 502 Increasing American Competitiveness
(a.) Strikes off existing EB-1, EB-2 and EB-3 category and replaces it with Merit
based evaluation system.
The cart provides the weights accorded for different criteria. Secretary of DHS
(consultation with Commerce & Labor) will establish procedures and time period in
which applications should be submitted.
Standing commission on Immigration & Labor market to recommend procedures and
weights accorded for different criteria. These will take effect starting 6th fiscal year in
which ‘Z’ visa holders become eligible.
An applicant could re-file if an application is denied.
(b.) Special immigrants not to exceed 4200. Investor green card numbers not to
exceed 2800
(c.) Self-petitioning in EB-1 and the provisions for employer to file EB petition.
(d.) - Effective date is 10/01/2007 if bill enacted prior to 10/1/2007.
Effective date is 10/1/2008 if the bill is enacted after 10/1/2007 and before
06/01/2008.
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Key Points:
1. Those who do not want to reapply for Greencards under the new points based
merits system5 and wanting to continue with your current labor certifications,
140s or 485 petitions under the old system defined by this act6 would be subject to
an annual quota of 90,000 immigrant visas (Greencards). So instead of going up
from the current quota of 140,000 the new quota for existing EB system goes
down to 90,000 – a step backwards that would exacerbate existing backlogs. The
bill diverts a big portion7 of annual visas to Y visa holders8 and untested and
untried points based system. The future guest worker program of Y visa holders
would benefit at the expense of skilled, legal employment based immigrants
already in the country.
2. Until Z visa holders become qualified9 to apply for Greencards (which could be a
long time), family based immigration will get 567,000 each fiscal year.
3. EB GC quota for the first 5 years10 is 246,877 (EB GC given in 2005
http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2005/table10.xls) PLUS
unused visas out of the 567,000 in family based category. Out of the grand total,
ONLY 90,000 will be for people who applied labor/140/485 under old system of
EB1, EB2, and EB3 etc. The rest will go to Y visa holders.
4. If the Z visa holder’s immigration system11, under which the current
undocumented immigrants on Z visas are qualified for Greencards, does start
receiving petitions in first 5 years, then 6th year and onwards, the EB quota will
be 140,000 plus unused visas from family based 567,000. From the grand total of
140,000 plus unused of family based, ONLY 90,00012 will be for people who
filed under the old system with pending labor/140/485. The rest will go to Y visa
holders.
5. After the Z visa holder’s immigration system allows Z visa holders to apply for
GC, and then the Employment based quota becomes 380,000 plus supplemental
numbers depending on number of illegals that applied for Z visa. Its unclear if
this 380,000 can be concurrent to first 5 years quota of 246,877 if Z visa holder’s
immigration system starts accepting petitions during the first 5 years. This new
5
Section 502(b)
6
Section 502(d).
7
Section 501(b) that redefines 8 U.S.C. 1151(d). See (1) (A) and (1) (B) of the amended version.
8
New visa category for unskilled workers under the guest-workers program. Quota = 400,000 per year.
9
Section 501(a) that redefines 8 U.S.C. 1151(c) of family based immigration
10
Section 510(b) that redefines 8 U.S.C. 1151(d). See (1) (A) of the amended version.
11
101(a)(15)(Z) of this act.
12
Section 501(b) that redefines 8 U.S.C. 1151(d). See (1) (B) of the amended version.
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380,000 has no provision for existing GC applicants, not even 90,000. It will be
all new applicants under merits based point system.
6. Per country limits increased from 7% to 10% for family based and employment
based immigration quotas.13. However, the undocumented immigrants who would
apply for a Z visa and then eventually apply for Greencard has no per-country
caps.
7. The annual quota available to the undocumented immigrants for adjustment of
status to Greencard is equal to total number of such undocumented immigrants
who file for Z visa divided by 5. With over 11 million undocumented immigrants,
the annual quota is set to 20% of the total number14 of such potential applicants to
grant Greencards to all of them in 5 years or less. Therefore annual Greencard
quota for the undocumented immigrants subsequent to Z visa petition would be
approximately 2.2 million per year for the first 5 years.
13
Section 508 of this act.
14
Section 203(f)(2) of this act.
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