President Obama has made comprehensive immigration reform a priority. In January, both the President and a bipartisan group of eight senators laid out their respective proposals for immigration reform.

The Senate proposal has four basic elements: (1) a path to legalization for illegal immigrants; (2) increased border security; (3) increased employer verification requirements; and (4) increased employment-based immigration. Work on the bill continues and it is now expected that the legislation may seek to double the current 65,000 H-1B cap, or set it in the low l00,000-range. The bill may also call for increased fees for large H-1B users. This would include a graduated fee structure that sets higher H-1B fees once IT service providers hit certain thresholds.

President Obama expressed his support for the principles underlying the Senate proposal, but pledged to send his own reform bill to Congress if members fail to act quickly. The White House’s own framework is based on similar principles, namely: (1) strengthening border security by focusing enforcement resources on preventing those intent on harming the United States from entering the country; (2) streamlining legal immigration, including eliminating annual country caps on immigrant visas, creating new visa programs for foreign investors and entrepreneurs, and “stapling” green cards to the diplomas of foreign nationals who earn a U.S. advanced degree in a science, technology, engineering, or mathematics (STEM) field; (3) creating a path to earned citizenship for undocumented immigrants, including registering and undergoing national security and criminal background checks, paying taxes, and learning English; and (4) cracking down on employers that hire undocumented workers.

Numerous new stand-alone bills have also recently been announced.

Immigration Innovation Act of 2013 (I-Squared Act)

This bill increases the current number of available H-1B visas for highly-skilled workers and makes that number adjustable based on market demand. The current quota of 65,000 for new H-1Bs per fiscal year would be raised to 115,000, and could be adjusted up to 300,000 per year depending on the demand in a given year. The bill also eliminates the cap on the existing exemption for holders of U.S. advanced degrees and provides for spouses of H-1B visa holders to be “employment authorized.”

Employment-Based Green Cards

The proposed legislation also revises the current process for the allocation of employment-based green cards. The bill allows for the recapture of unused green cards that were approved by Congress but, due to delays, were lost. Under the bill, any unused employment-based green cards would roll over to the next fiscal year. Annual per-country limits for employment-based green cards would be eliminated and per-country limits for family-based green cards would be adjusted, depending on demand, allowing additional access to permanent residence.

In addition, certain groups would be exempt from the green card numerical limitations, namely: students who have earned a U.S. master’s or higher degree in a field on the Department of Homeland Security (DHS)-approved STEM list; dependents of principal employment-based immigrant visa recipients; individuals of extraordinary ability; and outstanding professors and researchers. Students would no longer be required to maintain “nonimmigrant intent,” i.e., they would not have to maintain a residence abroad that they have no intention of abandoning.

H-1B and L-1 Visa Reform Act of 2013

Among other provisions, this bill requires employers to post available job openings on the Department of Labor (DOL) website for 30 days prior to petitioning for an H-1B worker, prohibits companies from outsourcing visa holders to other companies, modifies the formula for determining the prevailing wage that must be paid to H-1B visa employees, permits the DOL to conduct random audits and investigations of H-1B visa employers, and requires an employer that employs 50 or more U.S. workers to attest that less than 50 percent of its workforce are H-1B and L-1 visa holders.

The fines for companies that violate H-1B and L-1 visa programs would increase and the ability of these companies to participate in future recruiting would be restricted. The bill obliges an L-1 visa holder to prove that a legitimate business is being established and requires a report on the blanket petition application process.

Note: This article was published in the March/April 2013 issue of The Employment Law Authority.

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Ogletree Deakins has one of the largest business immigration practices in the United States and provides a wide range of legal services for employers seeking temporary business visas and permanent residence on behalf of foreign national employees.

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