On February 18, 2021, the Biden administration formally introduced a new immigration bill in Congress—the U.S. Citizenship Act of 2021. The bill, marshaled by Representative Linda Sanchez (D-CA) and Senator Robert Menendez (D-NJ), includes provisions that would impact all aspects of what the administration considers a broken immigration system. In a fact sheet regarding the proposal released on January 20, 2021—the first day of the new administration—President Joe Biden stated that the bill is a chance to “restore humanity and American values to our immigration system.”
This bill follows the president’s immediate efforts to unwind a number of former president Donald Trump’s executive actions, including the so-called “Muslim ban,” as well as end construction of the southern border wall, increase the refugee cap numbers, and implement a new asylum process. With this proposal, the administration hopes to follow through on a number of campaign promises, including the direct path to citizenship for undocumented individuals brought to the United States as children, known as Dreamers.
In the business immigration context, the U.S. Citizenship Act includes an extensive number of provisions covering a wide range of topics. Summaries of the provisions include the following below.
- Section 3101—Recapture of immigrant visas lost to bureaucratic delay. This section would recapture unused employment-based green card numbers from fiscal years 1992 to 2020 and would increase the number of green card immigrant visas issued per fiscal year from 140,000 to 170,000.
- Section 3102—Reclassification of spouses and minor children of lawful permanent residents [LPRs] as immediate relatives. This section would reclassify spouses and minor children of LPRs—green card holders—as “immediate relatives,” meaning that immigrant visa numbers would be immediately available to complete the green card sponsorship process.
- Section 3103—Adjustment of family-sponsored per-country limits. This section would raise the per-country green card visa cap for family and employment-based immigrants from the current 7 percent limit to 20 percent of the worldwide total.
- Section 3104—Promoting family unity. This section would repeal the 3- and 10-year bars for noncitizens who depart the United States after accumulating 180 days or 1 year, respectively, of unlawful presence in the country. Many visa holders have unwittingly overstayed the duration of their admission to the United States only to learn that they could be subject to a bar to reentry to the United States if they depart the country. This provision would repeal this result.
- Section 3401—Exempting doctoral degree graduates in the science, technology, engineering and mathematics (STEM) fields from U.S.-accredited universities from the numerical limits on green cards. The section would, in effect, make it easier for STEM doctoral graduates to remain in the United States while they search for employment.
- Section 3403—Eliminating per-country caps for employment-based immigrants. This provision would benefit individuals in some particular groups, such as Indian or Chinese nationals, who have been subject to lengthy wait times to receive green cards. However, it could result in a worldwide backlog, creating new backlogs for some foreign nationals who traditionally do not have wait times for employment-based green cards.
- Section 3404—Increased immigrant visas for other workers. This section would increase the number of immigrant visas in the employment-based third preference category of “other workers” from 10,000 to 40,000 (i.e., for cases where the role would require less than two years of experience).
- Section 3405—Flexible adjustments to employment-based immigrant visa program. This section would authorize the secretary of homeland security, in consultation with the secretary of labor, to reduce the admissions of EB-2 or EB-3 immigrants during times of high unemployment in particular “geographic areas or labor market sectors.”
- Section 3407—“Wage-based consideration” of H-1B numbers. This section is reminiscent of the Trump administration’s proposal related to the allocation of H-1B cap visa numbers in that it authorizes the prioritization of H-1B visas based on the wages offered to the employee. It is worth noting that this section would also allow the secretaries of homeland security and labor to expand this consideration to other nonimmigrant worker categories when doing so is “deemed appropriate.”
- Section 3409—Work authorization for H-4 visa holders. This section would expand the benefit of work authorization for H-4 visa holders to include both spouses and children. The current regulations only allow for H-4 spouses to hold such work authorization, if the spouse in H-1B visa status has reached certain milestones in the green card process.
- Section 3410—Visa extensions for individuals pursuing green cards. This provision would provide for additional extensions of nonimmigrant visa status in one-year increments to persons in F-1, H-1B, L, and O visa status, if their immigrant visa petitions or labor certifications have been pending for more than one year. Under current law, persons in H-1B visa status are eligible to extend their status beyond the standard maximum time limits where certain milestones in the green card process have been met. This new provision appears to expand this benefit to additional nonimmigrant visa categories.
In addition to the above, the U.S. Citizenship Act of 2021 proposes to change the term “alien” to “noncitizen” to better align with the president’s values and vision on immigration. Further, there are additional sections reevaluating those subject to age-out provisions and expanding equal treatment of LGBTQ+ partnerships under the Immigration and Nationality Act.
For the bill to pass through the regular legislative process, Senate Democrats have an uphill battle, as they must secure at least 10 Republican votes. The White House has yet to comment on whether the president would consider trying to pass the bill through the reconciliation process, which solely requires a majority to pass fiscal legislation. Given the extensive number of provisions included in the bill, it is unclear if a consensus amongst the majority will even be achievable. One thing that is clear, however, is that if the bill passes, it would be the first major immigration reform bill to pass Congress since 1996. Most likely, however, the bill may not pass muster as a whole and may be broken apart piecemeal. As Representative Sanchez acknowledged during a recent press conference, “[w]e all know that when you introduce a bill, oftentimes, the end result is not exactly the starting result.”
Ogletree Deakins’ Immigration Practice Group will continue to monitor developments with respect to the policy changes and will post updates on the Immigration blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.
