Feb 18 2021

President Biden’s Immigration Reform Proposal Introduced in Congress

United States

At a glance

  • The comprehensive immigration legislation would provide a pathway to permanent residence and citizenship for certain undocumented foreign nationals who were present in the United States on January 1, 2021 as well those holding DACA, TPS or H-2A status who meet the presence requirement.
  • The bill also contains provisions aimed at clearing the employment-based and family-based green card backlogs to speed the green card process, as well as expanded benefits for certain nonimmigrants seeking permanent residence.
  • Prospects for the bill passing Congress and becoming law remain unclear. It is likely to be subject to significant debate and potential revisions.

The issue

Today, President Biden’s comprehensive immigration reform proposal, the U.S. Citizenship Act of 2021, was formally introduced in Congress. The bill features a path to permanent residence and citizenship for qualifying undocumented foreign nationals and those holding Deferred Action for Childhood Arrivals (DACA), Temporary Protected Status (TPS) and H-2A status; mechanisms to clear extensive green card backlogs in the employment-based and family-based programs; a streamlined process for graduates of U.S. universities with advanced STEM degrees to obtain permanent residence; and an increase in Diversity Lottery Visas, among other provisions. 

Some key provisions in the bill are as follows:

Pathway to permanent residence and citizenship

  • The bill provides a path for foreign nationals currently holding DACA, TPS or H-2A status to apply for permanent residence if they were physically present in the United States on January 1, 2021 through the date of their application with only brief absences, along with other requirements. Some of these foreign nationals may be able to apply for citizenship after three years, if they meet other status and naturalization requirements.
  • Undocumented foreign nationals who were physically present in the United States on January 1, 2021 through the date of their application would be able to immediately apply for temporary legal status as a prospective immigrant. After five years in temporary status, they would become eligible to apply for permanent residence if they have passed certain security and criminal checks and paid U.S. taxes. These foreign nationals could then apply for citizenship after three additional years provided that they meet all naturalization requirements. Special provisions are also included for certain individuals who were removed during the Trump Administration, but were physically present for at least three years prior to their removal. 

Employment-based immigration reforms

  • Immigrant visa numbers: The bill includes provisions to reduce immigrant visa backlogs, recapture unused immigrant visa numbers from past years, and eliminate per-country employment-based (EB) immigrant visa (IV) caps. Reduction in backlogs would be achieved in part by exempting Ph.D. graduates working in the science, technology, engineering and mathematics fields from the green card quota. The bill also increases to 170,000 (from 140,000) the annual limit for employment-based immigrant visas and exempts from quotas the beneficiaries of approved immigrant visa petitions waiting more than 10 years in the green card process. However, the bill would permit temporary decreases in the EB IV quota during periods of high U.S unemployment, as discussed below.
  • H-1B (and other) nonimmigrant visa number distribution by wage: A provision authorizes DHS to prioritize the distribution of H-1B and potentially other nonimmigrant work visas, based on the wage offered by the employer.
  • H-4 employment authorization: The bill permits employment authorization for all H-4 spouses and children of H-1B workers. The current program is limited to the H-4 spouses of H-1B workers who have advanced in the employment-based green card process.
  • Nonimmigrant status while in the green card process:
    • The bill expands H-1B extension eligibility for I-140 immigrant visa petition beneficiaries and prevents the aging out of certain H-4 children who are in the green process with their H-1B parent.
    • A provision authorizes extensions of F-1, H-1B, L-1, and O-1 status in one-year increments if the foreign national has a labor certification or I-140 immigrant visa petition pending for over a year. Currently this benefit is only available to H-1B nonimmigrants.
  • Downward adjustment of employment-based green cards based on labor market conditions: DHS would have the authority to adjust downward the number of employment-based 2nd and 3rd preference green cards during times of high unemployment in certain areas or sectors.
  • Economic stimulus pilot: The bill would create a pilot program that would stimulate regional economic development and admit up to 10,000 additional immigrants per year whose employment is deemed essential to economic development in their communities.
  • Additional employer penalties for labor law violations: The bill adds an additional civil penalty for employer violations of federal, state or local labor laws with respect to unauthorized workers. It also requires the Departments of Homeland Security and Labor to make recommendations for improving the employment eligibility verification process and providing protections to foreign workers affected by labor violations.

Family-based immigration reforms

  • Immigrant visa numbers: Family-based immigrant visa backlogs would be cleared through the recapture of unused visas from prior years and an increase in per-country visa caps to 20 percent (from 7 percent). Reduction in backlogs would be achieved in part by exempting spouses and children of green-card holders from the annual green card quota.  The bill also exempts from quotas the beneficiaries of approved immigrant visa petitions who have been waiting more than 10 years in the green card process.
  • V visa provisions: A process would be put in place that expands the ability of foreign nationals with certain approved family-sponsored petitions to join family members in the United States in V visa status while their green card applications are pending.
  • Adds “permanent partner” to family immigration framework: Immigration laws would be revised to permit “permanent partners” to sponsor and receive immigration benefits, which includes adult couples who are unable to marry in their jurisdiction and meet certain other criteria. 

Other provisions

  • F-1 dual intent: The bill explicitly permits dual intent for full-time postsecondary F-1 students, permitting the group to more easily pursue permanent residence while in full-time student status.
  • Diversity Lottery increase: The annual number of green cards available under the Diversity Lottery Visa Program would increase to 80,000 (from 55,000).
  • Elimination of three- and ten-year and permanent bars: The three- and ten-year bars for individuals who have been unlawfully present in the United States would be eliminated, as well as the permanent bar for those with unlawful presence who attempt unlawful reentry.
  • Streamlined naturalization requirements for some lawful permanent residents (LPRs): Certain LPRs who had been in valid status and eligible for work authorization for three years prior to obtaining green cards may be eligible to apply for citizenship after three years in LPR status rather than five. 
  • Explicit ban on discrimination based on religion: The U.S. government would be barred from discriminating based on religion in issuing immigrant and nonimmigrant visas unless explicitly required by statute.
  • Technology and enforcement: Immigration enforcement would be enhanced through smart technologies. 
  • Central American region: Funding would be allocated for an inter-agency plan that would address the underlying causes of migration in the Central American region, including an increase in assistance to El Salvador, Guatemala and Honduras, conditioned on their ability to reduce the corruption, violence and poverty that causes their citizens to flee. 
  • Asylum and U visa reform: Humanitarian program reforms would be implemented, including an elimination of the one-year deadline for filing an asylum claim and an increase in the U visa cap to 30,000 (from 10,000). 

What’s next for the proposal

The bill must pass both the House of Representatives and the Senate and then be signed by President Biden in order to become law. As with prior comprehensive immigration reform bills, it is likely to face significant debate and amendments. Prospects for approval, at least in its current form, are unclear. Fragomen is closely following the legislation and will provide updates. 

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.