Immigration Reform

[permaudit]

The bill does not do away with the sibling category (Family -4th preference) but it is going to take much longer to get a green card. 

 

The caps, based on the worldwide family-sponsored level, are as follows:

• 20 percent for unmarried sons or daughters of U.S. citizens;
• 20 percent for unmarried sons or daughters of LPRs;
• 40 percent for brothers and sisters of U.S. citizens.

(Source: http://www.rpc.senate.gov/legislative-notices/legislative-notice-s-744_the-border-security-economic-opportunity-and-immigration-modernization-act)

 

I guess that Bill does remove the category altogether. Below is the piece of information from Murthy's Blog.

 

Proposed Family-Based Changes

In the family-based categories, the bill proposes various substantive changes that would serve to expand eligibility in some cases, but reduce or eliminate eligibility in others. For instance, the definition of immediate relative would be changed to include children and spouses of permanent residents, in effect removing the numerical visa limit for this category. However, the category for siblings of U.S. citizens, FB4, would be eliminated altogether.

Source: https://www.murthy.com/2013/04/29/immigration-reform-bill-summary-part-1-of-2/

[maverick41]

oct2012perm, you are right about the proposed family changes. I thought the reference from the senate republican committee that I provided above (dated June 13th) was accurate.

 

After looking through the language in the latest bill  (on the Library of Congress/Thomas) there is no mention of allocation of immigrant visas to siblings (Sec. 2307. Allocation of Immigrant Visas). 

[hornofgondor]

The immigration reform passes the senate by 68-32.

 

Now the ball is in the court of US House of Representatives. I believe the immigration bill (not necessarily the one passed by senate. It could be either of 2 alternate versions to the senate bill) has to pass a very perilious path before crossing the finish line in the House.

[pregas]

I guess that Bill does remove the category altogether. Below is the piece of information from Murthy's Blog.

 

Proposed Family-Based Changes

In the family-based categories, the bill proposes various substantive changes that would serve to expand eligibility in some cases, but reduce or eliminate eligibility in others. For instance, the definition of immediate relative would be changed to include children and spouses of permanent residents, in effect removing the numerical visa limit for this category. However, the category for siblings of U.S. citizens, FB4, would be eliminated altogether.

Source: https://www.murthy.com/2013/04/29/immigration-reform-bill-summary-part-1-of-2/

So my interpretation of reforms is correct? I have another question. Are they  going to remove parents too?

[hornofgondor]

It appears that under the current draft of the bill not all STEM masters students will be eligible for the unlimited green card (no numerical limitations) rule. It seems that only those masters students from a doctoral research university with a very high or high research activity will be eligible. For reference this is in pages 407-410 in the latest bill on Thomas.

 

Is my interpretation right?

[maverick41]

With regards to STEM which falls under Section 2307. One needs to graduate from an "institution of higher education" which is a generic term for the level of education provided at a recognized/accredited university. http://www.ice.gov/doclib/sevis/pdf/stem-list.pdf . 

 

Some of the other considerations in addition to the STEM degree include- 

- an offer of employment from a US employer in a field related to such a degree

- earned the degree within 5 years before the filing of the petition 

 

So just to clarify you do need a job and there is nothing like an immediate green card for a STEM graduate. The main advantage for those who apply for green card within 5 years of graduation is that they avoid the PERM process and yes no more quotas.

 

Lets see what happens in the House :)

[hornofgondor]

With regards to STEM which falls under Section 2307. One needs to graduate from an "institution of higher education" which is a generic term for the level of education provided at a recognized/accredited university. http://www.ice.gov/doclib/sevis/pdf/stem-list.pdf . 

 

Some of the other considerations in addition to the STEM degree include- 

- an offer of employment from a US employer in a field related to such a degree

- earned the degree within 5 years before the filing of the petition 

 

So just to clarify you do need a job and there is nothing like an immediate green card for a STEM graduate. The main advantage for those who apply for green card within 5 years of graduation is that they avoid the PERM process and yes no more quotas.

 

Lets see what happens in the House :)

 

True. But the list you provided pertains to only STEM list. I think there are some restrictions on the eligibility of STEM graduates for these permanent visas based on the type of institution they graduated from. Here is the definition for the US institution of higher education according to the bill:

 

‘‘(ii) DEFINITION.—In this subparagraph, the term ‘United States institution of higher education’ means an institution that

 ‘‘(I) is described in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)) or is a proprietary institution of higher education (as defined in section 102(b) of such Act (20 U.S.C. 1002(b)));

 ‘‘(II) was classified by the Carnegie Foundation for the Advancement of Teaching on January 1, 2012, as a doctorate-granting university with a very high or high level of research activity or classified by the National Science Foundation after the date of enactment of this subparagraph, pursuant to an application by the institution, as having equivalent research activity to those institutions that had been classified by the Carnegie Foundation as being doctorate-granting universities with a very high or high level of research activity; and

 ‘‘(III) is accredited by an accrediting body that is itself accredited either by the Department of Education or by the Council for Higher Education Accreditation.’’ 

 

I think based on this, not every STEM student will be eligible for a green card. For example, a graduate from the **** may not be eligible under this definition.

 

Also, I guess people with a doctoral degrees from US institutions of higher education will be eligible for immediate green cards without the need to have a job.

[MNVikings]

Guys, I am working in EVC model on H1B. I have not followed the Bill very closely. But I read some news about outplacement ban etc. Can any one of you experts here tell me if that is true, and EVC is not an option if this bill becomes law?

[pokirigadu]

Hi Maverick - I graduated masters in elec eng. in Summer 2007. since then working on H1B in  software consulting afer my 1 year opt.

My priority date is may 2011.(labor and I140 approved with my company, who is h1b dependent employer)

 

Have couple of questions

 

1. My h1b expires on Sept 2014. Do h1b extensions come under new rules if immigration reform is passed in house ?( Piece meal approach, provided house agrees with h1b terms in senate bill, and its effective from oct 1st,2014) 

2. What happens to backlog GC applications from companies who are in IT services and H1B dependent employer(80%) 

3. Will I loose my approved date ? 

 

Thanks for all your updates

[maverick41]

True. But the list you provided pertains to only STEM list. I think there are some restrictions on the eligibility of STEM graduates for these permanent visas based on the type of institution they graduated from. Here is the definition for the US institution of higher education according to the bill:

 

‘‘(ii) DEFINITION.—In this subparagraph, the term ‘United States institution of higher education’ means an institution that

 ‘‘(I) is described in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)) or is a proprietary institution of higher education (as defined in section 102(b) of such Act (20 U.S.C. 1002(b)));

 ‘‘(II) was classified by the Carnegie Foundation for the Advancement of Teaching on January 1, 2012, as a doctorate-granting university with a very high or high level of research activity or classified by the National Science Foundation after the date of enactment of this subparagraph, pursuant to an application by the institution, as having equivalent research activity to those institutions that had been classified by the Carnegie Foundation as being doctorate-granting universities with a very high or high level of research activity; and

 ‘‘(III) is accredited by an accrediting body that is itself accredited either by the Department of Education or by the Council for Higher Education Accreditation.’’ 

 

I think based on this, not every STEM student will be eligible for a green card. For example, a graduate from the **** may not be eligible under this definition.

 

Also, I guess people with a doctoral degrees from US institutions of higher education will be eligible for immediate green cards without the need to have a job.

 

You are right about the type of institution. It has to be accredited and cannot be one of the run of the mill institutions that churn out degrees. That being said, there are several institutions that fit the criteria outlined in the bill. Based on what I have seen, most students who come on an F1 visa are usually enrolled in a  good university.

 

It's usually those who are in the US (dependents, F1 visa transfers, someone who is about lose a job or is hoping to work on CPT) that usually makes the mistake of joining an unaccredited university.

 

As far as those with doctoral degrees from accredited US universities. It is true that they can obtain green cards faster (applicants with doctoral degrees fall under the Tier 1 merit based category)  but again they would have to follow the new point based system. 

 

(A) Education-  " An alien who has received a doctorate degree from an institution of higher education in the United States or foreign equivalent shall be allocated 15 points"  Masters- 10 points. Bachelors 5 points

 

Other factors where points are going to be calculated include- employment related to education, high demand occupation, English skills, age, country of origin, sibling of a us citizen civic involvement etc. 

 

So there could be a scenario under the merit based track 1 category where someone with a masters or bachelors may have more points than someone with a PhD. 

 

" Merit based track one- This provision establishes a new merit-based immigrant visa category with a numerical limitation set at 120,000 visas per year and allows for recapture of any unused visas.  The numerical limitation is set to increase every year, with a cap of 250,000 visas for a fiscal year; however, there will be no increase in the number of visas if unemployment in the U.S. is above 8.5 percent."

[maverick41]

Pokirigadu, you will not lose your approved date and since the law comes into effect on October 1st you will be able to extend your visa.

 

if this bill becomes law, those with pending green card applications can expect a green card faster since USCIS will be moving towards a point based/merit based track system of immigration-

 

Section. 2302 merit-based track two. of the bill mentions employment based immigrants and that beginning on October 1, 2014 the following aliens shall be eligible for merit-based immigrant visas- 

(1) Employment-based immigrants.
To summarize this section- an alien who is the beneficiary of a petition filed before the date of the enactment of this Act is eligible for a green card within 5 years after the date on which the petition is filed. 

[maverick41]

With regards to H1B dependent employers, the bill proposes the following:

• It will prohibit outplacement, outsourcing or placement of H-1B workers by H-1B dependent employers.
  
• It will allow outplacement, outsourcing or placement for non-dependent H-1B employers, but impose an additional filing fee of $500.
  
• Employers (other than educational or research employers) that employ 50 or more workers in the United States are banned from sponsoring H-1B workers if more than 75% of their workforce is in H-1B status (in 2015), changing to 65% in 2016 and 50% in 2017.
  
• The May 3 2013 amendment to the bill defines an 'intending immigrant' for the purposes of calculating H-1B dependency as a H-1B worker who has a pending or approved labor application, rather than requiring a labor application pending for one year or more.
  
• The bill requires all H-1B-dependent employers to submit an annual report to the Department of Homeland Security, including W-2s for all H-1B workers employed during the previous fiscal year.
  

(Source: International Law Office)

[hornofgondor]

You are right about the type of institution. It has to be accredited and cannot be one of the run of the mill institutions that churn out degrees. That being said, there are several institutions that fit the criteria outlined in the bill. Based on what I have seen, most students who come on an F1 visa are usually enrolled in a  good university.

 

It's usually those who are in the US (dependents, F1 visa transfers, someone who is about lose a job or is hoping to work on CPT) that usually makes the mistake of joining an unaccredited university.

 

As far as those with doctoral degrees from accredited US universities. It is true that they can obtain green cards faster (applicants with doctoral degrees fall under the Tier 1 merit based category)  but again they would have to follow the new point based system. 

 

(A) Education-  " An alien who has received a doctorate degree from an institution of higher education in the United States or foreign equivalent shall be allocated 15 points"  Masters- 10 points. Bachelors 5 points

 

Other factors where points are going to be calculated include- employment related to education, high demand occupation, English skills, age, country of origin, sibling of a us citizen civic involvement etc. 

 

So there could be a scenario under the merit based track 1 category where someone with a masters or bachelors may have more points than someone with a PhD. 

 

" Merit based track one- This provision establishes a new merit-based immigrant visa category with a numerical limitation set at 120,000 visas per year and allows for recapture of any unused visas.  The numerical limitation is set to increase every year, with a cap of 250,000 visas for a fiscal year; however, there will be no increase in the number of visas if unemployment in the U.S. is above 8.5 percent."

 

 But I was under the impression that the following categories are exempt from annual numerical limits.

 

    a. All EB1 applicants

    b. PhD holders (all fields)

    c. Certain physician who have completed the foreign residency requirements under section 212(e) or obtained a waiver of these requirements or an exemption requested by an interested State agency or by an interested Federal agency under section 214(l) 

    d. Applicants with MS/PhD in STEM fields from accredited US institution + this degree received in less than 5 years from (I-140) petition filing date + have current job offer

 

Given that these groups may be eligible for a green card without regard to the annual limits, would they still fall under the point based system? Or, am I wrong somewhere?

[maverick41]

There are numerical limitations for merit-based points track one (page 347 lines 10- 13).

 

The only uncapped category is--spouses and children of legal permanent residents who are considered immediate family members and are not subject to caps. The argument made by lot of the advocates of the senate bill are that this bill would actually reduce the number of people entering the country in the future. 

 

Now what you have indicated- EB1, Physicians etc. fall under the "preference allocation for employment based immigrants" (page 404 line 14)  Based on my understanding of the bill language (klingon is easier to understand:))  the point system is still applicable to the categories you outlined.  

 

The only advantage would be that this "preference allocation" would result in things such as labor certification exemption  (e.g. STEM immigrants),  "visas shall be made available, in a number not to exceed 40 percent of the worldwide level authorized in section 201 (d)" (e.g. aliens with advanced degrees, physicians etc), Waiver of job offer (National interest waiver, physicians working in shortage areas or veterans facilities) 

 

 

 

 

[hornofgondor]

There are numerical limitations for merit-based points track one (page 347 lines 10- 13).

 

The only uncapped category is--spouses and children of legal permanent residents who are considered immediate family members and are not subject to caps. The argument made by lot of the advocates of the senate bill are that this bill would actually reduce the number of people entering the country in the future. 

 

Now what you have indicated- EB1, Physicians etc. fall under the "preference allocation for employment based immigrants" (page 404 line 14)  Based on my understanding of the bill language (klingon is easier to understand:))  the point system is still applicable to the categories you outlined.  

 

The only advantage would be that this "preference allocation" would result in things such as labor certification exemption  (e.g. STEM immigrants),  "visas shall be made available, in a number not to exceed 40 percent of the worldwide level authorized in section 201 (d)" (e.g. aliens with advanced degrees, physicians etc), Waiver of job offer (National interest waiver, physicians working in shortage areas or veterans facilities) 

 

Ok. Trying to decode the actual meaning of the text is fun :D.

 

Anyways, this is what I found on page 404 line 16 of the senate bill.

 

IN GENERAL.—Section 201(b)(1) (8 U.S.C. 1151(b)(1)), as amended by sections 2103© and 2212(d), is further amended by adding at the end the following:

 

Following the above sentence the categories I listed in my earlier post (i.e. extraordinary skills, talents, outstanding researchers, professors,  doctoral degree holders, and certain physicians and stem degree holders) are mentioned in the senate bill.

 

So, I went back to look at the section 201(b)(1) under the 8 USC 1151(b)(1). This section actually deals with the aliens not subject to direct numerical limitations. Based on what I understood, it appears that all the categories I mentioned earlier are added to the list of aliens who are not a subject to direct numerical limitations.

 

However, not being trained in the art of law, what I have deduced above may be entirely wrong.

[maverick41]

I have to admit you have got me stumped. Who would have thought that we would be trying to decipher bills after moving to the US :) 

 

So the way I understand it Section 201(b)(1) (8 U.S.C. 1151(b)(1)-the section that deals with worldwide levels of immigration and numerical limitations has been amended to remove country specific limits on employment based immigrant visas but I think you are right, this also means that the categories you mentioned (extraordinary skills etc) could be exempt from the worldwide cap.Thanks for pointing that out!

 

So if that's the case- highly skilled immigrants would still have to apply under the merit-based point system but the only difference would be that some (e.g. advanced degrees from the US)  may fall under the "preference allocation" and would be exempt from the numerical limitations set under the merit based track ( e.g. 120000 for merit-based points track one). 

 

Hopefully one of the lawyers at Murthy's firm or other experts can can chime in too. 

[hornofgondor]

Who would have thought that we would be trying to decipher bills after moving to the US :) 

 

True that.

[saintforlife]

If this bill becomes law, those with pending green card applications can expect a green card faster since USCIS will be moving towards a point based/merit based track system of immigration-

 

Section. 2302 merit-based track two. of the bill mentions employment based immigrants and that beginning on October 1, 2014 the following aliens shall be eligible for merit-based immigrant visas- 

(1) Employment-based immigrants.

To summarize this section- an alien who is the beneficiary of a petition filed before the date of the enactment of this Act is eligible for a green card within 5 years after the date on which the petition is filed. 

If a person got their M.S. degree in engineering in 2006 from an accredited US university, has worked in the US for 6 years on H1B visa, has an approved I-140 and has a priority date of September 2012 (EB2 India), when can this person expect to receive their Green Card under this bill?

 

p.s. Appreciate your efforts in this thread maverick41. Keep up the good work!

[maverick41]

Hey saintforlife,

 

I'm glad to hear that you found some of the posts useful. So in the case of the person with a Sept 2012 priority date and an approved I140- that person can expect a green card (ie. if the house accepts the bill language) by 2017 . I would anticipate it happening even before 2017 because if the bill becomes law USCIS would be asked to move to the point based immigration system and I'm sure they will try and clear out all the backlogged cases.

 

We will just have to wait and watch and see what happens with the bill in the house.

[maverick41]

There is still no news from the House on the Senate bill. 4 immigration related bills have passed the House Judiciary Committee:

 

The SAFE Act:  http://www.gpo.gov/fdsys/pkg/BILLS-113hr2278ih/pdf/BILLS-113hr2278ih.pdf

The Agricultural Guest Worker Act: http://www.gpo.gov/fdsys/pkg/BILLS-113hr1773ih/pdf/BILLS-113hr1773ih.pdf

The Legal Workforce Act: http://www.gpo.gov/fdsys/pkg/BILLS-113hr1772ih/pdf/BILLS-113hr1772ih.pdf

The SKILLS Visa Act: http://www.gpo.gov/fdsys/pkg/BILLS-113hr2131ih/pdf/BILLS-113hr2131ih.pdf

 

There is nothing on immigration on this week's calendar: http://judiciary.house.gov/hearings/calweek.html

[gretchen]

HI, Maverick, thank you for these engaging discussions. I am in Special Education (Sped) working as a teacher through a Masters in Sped. My Bachelors is in STEM. I am under EB3. Is there any possibility that Sped will be categorized as STEM because we use assistive technology in  the classroom?

[maverick41]

Hello Gretchen, glad to hear that you are working in a very noble profession. Unfortunately, I don't think special education can be classified as STEM even if you use assistive technology in the classroom. Interactive technology is mentioned under the ICE STEM list (CIP code 10) but that would require you to have an education/degree in that field.

 

As far as the senate immigration bill is concerned, if the bill becomes law, you do have the option of getting your green card within 5 years of your priority date. i.e. your green card is being processed now

 

In the scenario ( again if this bill becomes law)  where you are looking to pursue the point based immigration system. You will still score highly as you have an employment in the United States related to your education. Your field is also under a zone 5 occupation (teachers and scientists) which gets you 10 points. 

 

Lets hope for the best!

[gretchen]

Thanks, Maverick. The wait is just too long. Right now, I have an approved appeal for my I-140 (EB3) with a 2011 PD. Before getting this AAO decision we already applied for a 1-yr H1B extension based on a pending I-140 appeal. When we received favorable AAO decision, we sent letter to USCIS requesting extension change to 3 yrs. We attached pertinent updated pages of the I-129 to the letter. USCIS returned it with no explanation other than a generic letter giving us website and customer service number for follow-ups. We don't know if they automatically changed in our pending I-129 application our request from 1 yr to 3 yr-extension, or if they are waiting for us to submit an I-797 re: I-140 approval or if our request cannot be granted at all. What should I do about this? Also since my visa number is not yet available, I can't apply for I-485. Without a pending I-485, can I shift jobs and avail of portability of PD 6 months from now? If instead I change jobs 2-4 months from now, can I apply for a new H1B for this new job even if I have an H1B for the current job? With the uncertainty on the CIR, I feel I still need to look for a job that will make me EB2. Much thanks!

[maverick41]

I can understand the uncertainty you are facing and not waiting on the Senate bill to pass is wise.

 

With regards to your H1B extension - does your current job have a contract in place that gets renewed every year or was there an early expiry date in your LCA that was used for your H1B extension? An early expiry date on an LCA sometimes triggers an automatic 1 year extension on the part of USCIS.

 

You can apply for a new job and the new employer can file a second H1 B petition. Going back to an approved piece of legislation :) - "bill S.2045- section 105 increased portability of H1-B status) has rules that enable valid H1B visa holders to change jobs upon the filing of a new petition by the new employer as long as the individual is in lawful status at the time of filing and has not engaged in any unauthorized employment since his or her last lawful admission."

 

When it comes to your green card process with the 2nd employer, you will have to start PERM all over again. Your attorney can port your old priority date based on the copy of your approved I-140 from your old employer.

 

[gretchen]

For my H1B, I had a 1 yr extension last yr (2 yrs then 3 yrs then 1 yr) thus I reached 6th yr already this month. We applied for 1 yr extension but since appeal later came out, we wrote USCIS to upgrade our request to 3 yrs. They returned the documents with no explanation,and we wonder why. 

 

Is it  ok for new employer to request 3 yrs even if I already reached 6th yr with current employer? When I had an approved I-140, does that mean I am no longer covered by the 6 yr rule? Also it's only the AAO who told us our appeal is sustained, will we receive an I-797 from USCIS for the approved I-140? 

 

Re: S 2045 ( which I learned about only now thanks to you), since I am still waiting for the H1B extension approval for my current employee, am I considered in lawful status, or do I have to wait for H1B approval first before new employer can request H1B for me? On porting, does it mean then that a pending I-485 is not a prerequisite? Is it covered by an amendment to AC21? My thanks again.