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President Obama Voices Support for Employment-Based Immigration Reforms as Senate Begins Work on the Details
January 29, 2013
Envisioning the United States as “a magnet for the best and brightest,” President Obama today voiced his support for the tenets underlying a bipartisan Senate proposal for immigration reform, but vowed his own reform bill if Congress cannot act quickly.

In a list of comprehensive reform principles released after the President's speech, the White House called for specific reforms to the employment-based immigration system, including more immigrant visa numbers, the elimination of per-country quotas on immigrant visas, new visa programs for investors and entrepreneurs and a plan to “staple” green cards to the diplomas of foreign nationals who earn a U.S. advanced degree in a STEM field.

The President’s address and the White House framework followed a week of intense immigration activity in the Senate that included key proposals on employment-based programs. On Monday, a bipartisan group of eight Senators unveiled a framework for comprehensive reform, setting forth the guiding principles of an eventual Senate bill. Another Senate group today released a slate of detailed proposals to enhance the H-1B and employment-based permanent residence programs.

The Comprehensive Framework

The Senate framework for comprehensive reform is based on four pillars: a “tough but fair” path to citizenship for the undocumented population that is contingent on enhanced border security; a reform of the legal immigration system; the creation of a fraud-resistant employment verification system; and improvements in employment-based temporary programs.

Without going into great detail, the Senate framework calls for streamlined permanent residence for holders of U.S. advanced degrees in STEM fields and the reduction of backlogs in the employment-based permanent residence system generally. A plan for lower-skilled foreign workers would require sponsoring employers to demonstrate recruitment and non-displacement of U.S. workers. The framework also calls for a stronger employment verification system, including a “non-forgeable electronic means” to check the status and identity of new hires.

The plan was drafted by Senators Charles Schumer (D-NY), John McCain (R-AZ), Richard Durbin (D-IL), Lindsey Graham (R-SC), Robert Menendez (D-NJ), Marco Rubio (R-FL), Michael Bennet (D-CO) and Jeff Flake (R-AZ).

The I-Squared Act: A Detailed Proposal for Employment-Based Reform

Another bipartisan Senate group has released a detailed proposal to reform the employment-based temporary and permanent residence systems. The Immigration Innovation Act of 2013 (the I-Squared Act) is sponsored by Senators Rubio, Orrin Hatch (R-UT), Amy Klobuchar (D-MN) and Chris Coons (D-DE). Key components of the bill include:

H-1B reform. The I-Squared Act would increase the H-1B cap to a baseline of 115,000. A market-based escalator provision would allow for additional H-1B numbers up to a maximum of 300,000 in years when demand for the cap is high, and reductions in additional numbers when demand is low. The bill would create an unlimited H-1B cap exemption for holders of U.S. advanced degrees by removing the current ceiling of 20,000.

The bill seeks to reduce hurdles in H-1B extensions and job changes by making it harder for USCIS to deny the extension of previously approved petitions and giving terminated H-1B workers a sixty-day transition period to find new employment.

H-4 spouses would be eligible for employment authorization.

The H-1B training and education fee would be increased to $2500 for sponsoring employers with more than 25 employees. These funds would be used to promote STEM education and retraining of U.S. workers.

Nonimmigrant visa revalidation. The bill would reinstate the ability of E, H, L, O and P nonimmigrants to revalidate their visas from within the United States and avoid lengthy visa processing waits abroad.

Employment-based permanent residence reforms. The bill would reform the employment-based immigrant visa quota system by allowing for the recapture and roll-over of unused immigrant visas from prior years. Though the bill would add no new immigrant visa numbers, it would create quota exemptions for dependents of principal employment-based immigrants, holders of U.S. STEM advanced degrees, individuals of extraordinary ability and outstanding professors and researchers. The bill would also eliminate annual per-country quotas on employment-based immigrant visas.

The bill would end the current requirement that foreign students at U.S. universities prove they intend to return to their home country at the end of an academic program.

Next Steps for Comprehensive Reform

Though there is increasing momentum for a fast track to comprehensive reform, it is likely to take several months or more for a bill to move through the legislative process.

The Senate will now begin the work of drafting a detailed comprehensive reform bill, expected by March. The Senate Judiciary Committee is reportedly planning to hold a hearing on immigration reform as early as February 13. The I-Squared Act could be included in the Senate bill, but its favorable business immigration provisions would likely face opposition and potential amendments from legislators who support heightened restrictions on the H-1B and L-1 nonimmigrant programs. In past years, such proposals have included wage rules for L-1 employers and recruitment obligations extended to all H-1B employers.

If a reform bill is passed in the Senate, it will move to the House of Representatives, where it faces a tough battle. There is already vocal opposition from immigration hardliners in the House, who object to plans for the legalization of unauthorized foreign nationals.