Seguritan US Immigration Articles

Immigration Bill Moves to Senate Floor but House Has No Bill Yet

After five long days of markup, Senate Bill 744, properly known as the Comprehensive Immigration Reform Bill, was approved last May 21 by the Senate Judiciary Committee by a vote of 13-5.

There were about 300 amendments filed. Senator Grassley, a Republican, had 77 and Senator Sessions, also a Republican, had 59. In the end, a number of significant amendments were approved but the core provisions of the bill remained intact. It now moves to the Senate floor for a final vote by the entire Senate.

Among the amendments that were approved were provisions intended to keep families together such as Hirono Amendment 1 introduced by Democratic Senator of Hawaii, Mazie Hirono, to exempt children of certain Filipino World War II veterans from the numerical limitation, and Hirono Amendment 23 that would require the Department of Homeland Security to take into consideration the humanitarian needs of family members during removal proceedings at the border.

Senator Hirono also succeeded in pushing amendments that would make DREAM Act students eligible for federal financial aid, protect children from trafficking, and allow applicant for Registered Provisional Immigrant (RPI) status to pay application fees and penalties in installments. But her proposal to allow U.S. citizens suffering extreme hardship to petition for their adult sons and daughters or siblings was voted down.

Senator Blumenthal’s amendment to allow the naturalization of DREAMers serving in the Armed Forces was approved but his proposal to move the physical presence requirement for RPI eligibility from December 31, 2011 to April 17, 2013 was withdrawn.

As to employment-based immigration, the Senate Judiciary Committee adopted an amendment of the W visa program allowing the foreign workers to change employers without losing their immigration status. Moreover, the annual number of H-1B visa was increased from 110,000 in the original bill to 115,000. The amendment further adopts a new formula that will allow a quota increase of 5,000 to 20,000 within a fiscal year. This will depend on the demand and unemployment rate for managerial, professional and related occupations.

The final bill also clarifies that I-140 or employment-based immigrant petitions would remain valid so long as the beneficiary has a new job in the same or similar classification. The amendment adopted also allows adjustment applications to be filed concurrently with immigrant petitions even if the visa number is not yet available for a supplemental fee of $500.

The bill will still be subject to deliberation and amendments in the Senate floor. The Senate will need 60 votes to successfully move the bill to the House of Representatives. No bill has been introduced in the House yet but once a House bill is passed, the Senate bill will be reconciled with the House version. A group of bipartisan members in the House are expected to release their own version of the bill in a couple of weeks.

Meanwhile, some 150 conservative leaders have sent an open letter to members of the Senate urging them to vote against the bill. They are now campaigning to get support from the public particularly harping on the proposed pathway to citizenship as “immediate amnesty” which only rewards lawbreakers.

Also, a group of conservatives in the House who are not in favor of the comprehensive approach are already introducing individual bills dealing with specific aspects of immigration. Many consider the comprehensive immigration bill as the only way that the proposed pathway to citizenship for the undocumented can pass. The “piecemeal approach” employed by the conservatives is seen not as a means to subvert immigration reform but as a means to kill the proposed pathway to citizenship for the undocumented.

Ease Visa Rules to Avert Physician Shortage

More and more Americans are getting older and requiring more care. It is estimated that by year 2030, one in every five Americans will be at least 65 years old and by year 2020, four out of every ten patient visits will be by baby boomers. The U.S. population is also expected to grow by more than 50 million by year 2025.

In the midst of this growing and graying of the population, studies project a shortage of 125,000 doctors by year 2025. Meanwhile, almost half of the country’s physicians are at least 50 years of age. Since the education and training of a physician takes more than ten years, higher medical school enrolment will not be enough to ensure an adequate supply of doctors.

The U.S. has relied on international medical graduates (IMGs) to help meet its healthcare needs. At present, over a quarter of the nation’s physicians are IMGs who come from127 countries, most of whom were originally from India, the Philippines and Mexico.

To become a U.S. physician, an IMG faces a lengthy and complicated process that is fraught with uncertainty. Aside from having to pass the U.S. Medical Licensing Examinations and be certified by the Educational Commission for Foreign Medical Graduates, the IMG must complete a graduate medical education (GME) program in the U.S.

The IMG must be “matched” to his desired program, which could be very competitive depending on the field of medical specialty. Residency programs usually take anywhere from three to eight years. Furthermore, the IMG must obtain a license from the state medical board of his employing hospital. But before an IMG can join a residency program, unless he is a lawful permanent resident or a U.S. citizen he must be in a visa category that allows employment or training.

The immigration aspect of IMG recruitment carries with it a long history of restrictive regulations. Immigration policy was initially favorable to migration of IMG’s but things later changed and immigration rules were adopted that hampered the recruitment of many talented IMGs. Perhaps, herein lies the key to meeting the looming shortage of doctors.

For instance, the J-1 visa for exchange visitors, which is used widely used by IMGs to join residency programs, requires the IMG to depart the U.S. for two years upon the completion of his GME, or obtain a waiver of the requirement.

Compliance with the 2-year home residence rule is needed before the IMG can apply for permanent residence or change or adjust his status to another work-authorized non-immigrant status such as H-1B. The home residence requirement applies even if the IMG is eligible for an immigrant visa through marriage to a U.S. citizen.

The IMG can try to get a waiver from an interested federal government agency or a state health department or agency under a program which allows 30 waivers to be issued to IMGs annually. This is called the Conrad 30 program and it has come to be the source of 90% of waivers obtained by IMGs.

To be granted a waiver, the IMG generally would be required to work at an underserved geographic area and in a primary care specialty. Even then, given the limitation on the number of waivers under the Conrad 30 program, unless the number of waivers is increased or the home residence requirement is altogether eliminated, thousands of IMGs wishing to practice permanently after their GME will continue to face uncertainty and deal with the possibility of gong back to their home countries after years of valuable U.S. training.

The immigration reform bill now pending in the Senate contains several provisions that would end the current restrictions and make it easier for IMGs to become lawful permanent residents. Hopefully, they will be passed.

FILING H-1B PETITION AFTER CAP IS REACHED

May an employer file an H-1B petition even if the cap has been met? With the 65,000 annual quota for the cap-subject H-1B petitions for fiscal year 2014 already reached, an employer should determine if the petition is subject to the numerical limit.

Based on USCIS data, approximately 124,000 H-1B petitions were received during the first week of the filing period that ended on April 5, 2013. These included petitions filed under the advanced degree exemption.

Since the number of H-1B petitions exceeded the annual quota, the USCIS conducted an H-1B lottery on April 7, 2013. The H-1B lottery is a computer-generated selection process which was last used in 2008. The USCIS first used the lottery process to select the 20,000 petitions under the advanced degree exemption. Then, it randomly selected the 65,000 cap-subject petitions. Petitions under the advanced degree exemption which were not selected were also included in the lottery for the cap-subject petitions.

The petitions not selected in the lottery process as well as those filed after the final receipt date were rejected and returned with the filing fees. The USCIS however announced that it would continue to accept cap-exempt petitions.

A petition is cap exempt if the current H-1B worker has already been counted against the cap. This is the case where the petition filed on behalf of the H-1B worker is (1) to extend his stay in the U.S., or (2) change the terms of his employment, or (3) change employers, or (4) allow him to work concurrently in another H-1B position.

Petitions for new employment are exempt if the beneficiary will work at an institution of higher education or a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization.

In order to qualify as an “institution of higher education”, the institution must admit only high school graduates, is legally authorized to provide education beyond secondary education, provides bachelor’s degree programs or not less than 2-year programs that can be credited towards such a degree, is a public or nonprofit organization and accredited by a nationally recognized accrediting agency.

To be a related or affiliated nonprofit entity for purposes of the H-1B exemption, it must be connected or associated with an institution of higher education through shared ownership or control by the same board or federation; or be operated by the institution; or be attached to the institution as a member, branch, cooperative or subsidiary.

In a case that our office handled a few years ago, a dental intern petitioned by a nonprofit community health center was granted H-1B status under this exemption because we were able to prove by an institutional agreement and contract of services that the clinic was affiliated with the University of Massachusetts.

The USCIS is currently revisiting its position on this exemption category. It will however grant the exemption to those who have been previously granted exemption as “related or affiliated nonprofit entities” after June 6, 2006 unless there is a “significant change or clear error in prior adjudication.”

If the USCIS finds that there is a significant change or clear error in the adjudication, it will not grant the exemption. The reorganization of the entity as a for-profit entity, expiration of the affiliation not automatically renewed and affiliation with a different institution as basis for exemption are evidence of significant changes which may lead to denial of the exemption.

A nonprofit research organization is an organization engaged in basic research and/or applied research. A government research organization is a U.S. entity engaged in the performance or promotion of basic research and/or applied research.

J-1 physicians who have obtained a Conrad 30 waiver are also cap exempt.

Senate Bill Would Clear Employment Visa Backlog

Seeking to attract highly-skilled and highly educated professionals and workers to the United States, the Senate immigration reform bill proposes a number of significant employment-based immigration reforms.

The bill would clear the huge employment-based visa backlog by exempting several groups of immigrants from the annual quota of 140,000, recapturing visa numbers that were authorized from 1992 to 2003 but were never used, eliminating the per country limit, and creating a merit-based category.

Among the groups that would be exempted are the foreign nationals of extraordinary ability, outstanding professors and researchers and multinational executives and managers who are under the current first preference category with an annual allocation of 40,000.

Also, exempted would be those with doctorate degrees in any field; those with U.S. advanced degrees in Science, Technology, Engineering and Mathematics (STEM) earned in the 5 years before filing an immigrant visa petition and have a job offer in a related field; and physicians who have completed their 2 year foreign residency requirement or who have received a J-1 waiver.

Spouses and children of employment-based applicants would not also be subject to the annual numerical limit. These derivative beneficiaries used up more than half of the annual quota in the past so that their noninclusion would free up about 80,000 visas yearly.

The yearly quota would be allocated under the bills as follows: 40% to advanced degree professionals and persons of exceptional ability, 40% to skilled workers, professionals and other workers, 10% to certain special immigrants, and 10% to immigrant investors.

The thousands of recaptured visa numbers that were never used due to bureaucratic and processing delays would be added in fiscal year 2015.

120,000 yearly would also be available during the first 4 years under the new merit-based program of the bill. Immigrant visas will be granted under this program to those who can demonstrate that they have the needed number of points from their education, employment, length of residence in the U.S. and other factors.

As for temporary visas, the H-1B cap would be raised from 65,000 to 110,000 per year and the cap may be adjusted each year up to 10% with a ceiling of 180,000. The advance degree cap exemption will be raised to 25,000 but would be limited to STEM graduates. More stringent rules will apply such as nondisplacement attestations, additional recruitment steps and higher fees for H-1B dependent employers.

For lower-skilled workers, a new nonimmigrant work visa would be created. The W-1 visa will be available to foreign workers who work for a registered employer and will be valid for 3 years with extensions in 3-year increments. 20,000 W-1 visas will be allocated in the first year and this would increase to 75,000 in the fourth year. Further increases would be determined by a market-based formula but the cap would not exceed 200,000.

W-2 and W-3 nonimmigrant visa categories would also be created to replace the current H-2A visa for agricultural workers.

Major Changes in Family Immigration Proposed in Senate Bill

In line with its goal of shifting the focus of immigration from family-based to skills-based, the Senate comprehensive reform bill proposes a number of major changes in the current family-based preference system.

The annual limit of family-based immigrant visas will be reduced from 226,000 to 161,000. The per country cap will rise from 7% to 15%.

The bill will eliminate the 4th preference category for brothers and sisters of U.S. citizens and limit the 3rd preference category to married sons and daughters who are under 31. The changes will take effect after the bill is passed so that petitions filed before that will continue to be processed. U.S. citizens should consider filing their petitions for these relatives now.

Under the current system, the 4th preference category is allocated 65,000 annual visa numbers. As of November 2012, the Department of State recorded 2,873,114 applicants, including 188,521 Filipinos, on the waiting list.

The 3rd preference category on the other hand with current annual allocation of 23,400 has a waiting list of over 830,000 applicants. The bill will allocate 25% of the worldwide level for this scaled-back category.

The first preference category for the unmarried sons and daughters of U.S. citizens will be retained. This category has a waiting list of 288,000 and has an annual allocation of 23,400. Under the bill, it will have 35% of the worldwide allotment.

Unmarried sons and daughters of lawful permanent residents who are classified under the F2B preference category will be allocated 40% of the worldwide level.

Spouses and children of lawful permanent residents currently under the F2A category will be upgraded to the immediate relative category and would not therefore be subject to visa number limitation. Under that category they would be allowed to adjust their status even if they have overstayed or worked without authorization. Under the current system, only the spouse, unmarried children and parents of U.S. citizens have this benefit.

Derivative beneficiaries of immediate relatives applying for green card will be allowed to immigrate with their parents unlike now where they have to be petitioned separately under a different category. This will prevent separation of the children from their parents.

The bill will also benefit the unmarried sons and daughters of U.S. citizens under 31 and unmarried adult sons and daughters of lawful permanent residents who are beneficiaries of approved family-based petitions. They will be eligible for V visas to enable them to live and work in the U.S. while waiting for their priority dates to become current.

Brothers and sisters of U.S. citizens and sons and daughters of U.S. citizens over 31 years will also be eligible but they will not be authorized to work and their admission may not exceed 60 days per year.

Other new provisions under the bill include raising the age of a stepchild from 18 to 21 for purposes of allowing sponsorship by the stepparent; raising the age requirement for adopted child from 16 to 18; allowing aged-out children to retain the priority dates of the original petition of their parents; and permitting lawful permanent residents to file for a fiance petition.

The current rules pertaining to termination or reinstatement of registration for an immigrant visa, retention of priority dates, automatic conversion of visa petitions, petition for orphans and widows and inadmissibility waivers will be modified.

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