Biden Introduces Immigration Reform Bill to Congress
On Thursday, February 18th, President Biden introduced into Congress the U.S. Citizenship Act of 2021 (“CA21”). The President had previously outlined the Administration’s proposal for this bill on his first full day in office on January 20th. While the employment-based aspects of this bill are less far-reaching than his original proposal, if passed into law, the bill would provide several important new benefits to foreign workers and their employers, including providing H-4 work authorization for spouses and dependents, and the removal of the per country green card quota limits.
It is expected that some parts of the bill will face stiff resistance from Republican lawmakers, and the final version of any legislation passed by Congress may be much different than the draft released last Thursday. Although Biden and the Democrats have a majority in both houses of Congress, they will need at least 10 Republican Senators to override an expected filibuster to get the bill in its entirety passed. As mentioned in our previous update, the Administration has signaled a willingness to “break up” the bill to get specific provisions that have more bipartisan support through first. This is possible good news for many of the employment-based provisions, which in previous efforts at immigration reform have garnered support from both parties.
Summary of Key Employment-Based Provisions
Section 3401 exempts PhD students graduating in a STEM field from accredited U.S. schools from the immigrant (green card) quotas. Under current law, all persons in the employment-based sponsorship categories, including EB-1, EB-2 and EB-3, are subject to annual quotas, which result in long delays in obtaining green cards for many people. This provision would exempt persons with PhDs from being subject to these quotas, making the process much quicker for many such persons who are otherwise subject. It may also have a relatively small benefit for persons not eligible for the exemption by freeing up additional immigrant visa quota numbers.
Section 3402 exempts persons with a priority date over 10 years old from being subject to the immigrant quotas. This provision, which would take effect automatically 60 days after the bill is signed into law, is aimed at aiding Indian-born workers in H-1B status who are subject to long green card quota backlogs. The provision essentially puts a maximum time limit of 10 years for the quota backlog queue.
Section 3403 eliminates per-country green card quotas. This provision would eliminate the quota limits for employment-based categories that apply based on the applicants’ country of birth. The provision would essentially level the playing field for all persons who are going through the employment-based green cards sponsorship process, irrespective of where they were born. Unlike a similar bill introduced last year, Section 3403 does not provide transition rules to “soften the blow” to persons from countries not typically affected by a backlog, i.e. countries other than India and China. Section 3403 would likely make Section 3402 superfluous in the longer term.
Section 3404 increases the quota for EB-3 “other workers” (unskilled) from 10,000 to 40,000. This would generally have no impact on “high-skilled” immigration.
Section 3405 allows the Department of Homeland Security (DHS) and Department of Labor (DOL) to temporarily limit the number of green card approvals for areas of high unemployment. It is unclear how this will be put into place. It would seem to have little impact on companies that are able to have employees work remotely, or from geographically dispersed offices.
Section 3406 establishes a pilot program, not to exceed 5 years, granting an additional 10,000 immigrant visa numbers for specific U.S. counties and cities for workers “essential to economic development.” Like most other employment-based green card categories, the employer would be required to first test the U.S. labor market through the Labor Certification process to ensure qualified U.S. workers are not being displaced. This provision would presumably only provide a benefit if the individual is subject to a quota backlog in the other employment-based categories.
Section 3407 allows USCIS to implement regulations for wage-based allocation of H-1B cap petitions. This provision is similar to the Final Rule published in the waning days of the Trump Administration. It would improve the odds for highly compensated persons who are being filed in the annual cap lottery for new H-1Bs, while making the odds much lower for persons being offered entry-level and lower salaries.
Section 3408 establishes dual intent for all F-1 students with advanced degrees. This provision would allow F-1 students pursuing advanced degrees in the United States to seek a green card without being subject to the strict temporary intent requirement applicable to other F-1s and most nonimmigrant categories. Dual intent already applies to H-1Bs and L-1 multinational transferees.
Section 3409 provides age-out protection for H-4 dependents, and grants work authorization to all H-4 dependents (spouses and children). Under current law, a child of a H-1B worker who turns 21 years of age is no longer eligible for H-4 dependent status. This provision would allow the child to extend their H-4 status and remain eligible for green card sponsorship as a derivative, notwithstanding their age, provided a PERM Labor Certification or employment-based immigrant petition is filed for the principal H-1B holder before the child turns 21. The child must have also entered the United States in a derivative nonimmigrant status before turning 18.
Under current regulations, H-4 spouses may apply for work authorization where the green card process has been started for the H-1B principal, and certain other conditions are met. Section 3409 would extend eligibility for work authorization to all H-4 dependents, including children, irrespective of whether the green card process has been started. Unfortunately, this provision does not provide the same benefit to other nonimmigrant work-authorized classifications such as O-1, TN, etc.
Section 3410 extends status and work authorization for persons in F, L, and O statuses where the green card process is started 365 days prior to expiration of their period of stay in these statuses. Under current law, persons in H-1B status are eligible for one-year extensions of stay beyond the normal six-year limit for H-1Bs, provided a PERM labor certification or I-140 immigrant petition is filed at least 365 days before the six-year limit is reached. Section 3410 appears to extend this benefit to other classification. It is not entirely clear however what the utility of this provision would be in the case of F-1s and O-1s, as these classifications are not subject to a maximum time limit. It is likely that the final version, if it is passed into law, will provide more clarity on this point.
Summary of Key Family-Based Provisions
Section 3101 aims to recapture immigrant visa numbers lost each year and will restructure the allocation of family-based green cards, increasing the annual quota of family-based green cards from 226,000 to 480,000.
Section 3102 reclassifies spouses and children of lawful permanent residents as “immediate relatives.” Under current law, spouses and children of lawful permanent residents fall under the F2A preference category subject to the quota. This provision would make immigrant visa numbers immediately available for the green card process.
Section 3103. Adjustment of Family-Sponsored Per-Country Limits would raise the per-country limit from 7% to 20% and from 2% to 5% for dependent areas.
Section 3104. Promoting Family Unity, would repeal the 3/10-year bars for visa overstays of 180 days or more.
Section 3109. Inclusion of Permanent Partners makes “Permanent Partners” equivalent to spouses for immigration purposes under certain conditions, e.g. in committed, intimate relationship with intention of lifelong commitment but unable to marry in home country.
Section 3 would change the term “Alien” to “Noncitizen.” The term “alien” is seen by many as an antiquated and derogatory term. This provision aims to implement more modern nomenclature.
Title I would provide a pathway to permanent residency, and eventually citizenship, for undocumented persons meeting certain requirements in the United States.
Section 1101 creates a new immigration status: “Prospective Permanent Resident” (PPR). This provision allows the DHS to grant lawful prospective immigrant status to noncitizens meeting certain eligibility requirements for an initial period of 6 years.
Section 1102 allows PPRs to apply for permanent residency after 5 years in PPR status, provided certain conditions are met.
Section 1103 provides a direct pathway to permanent residency for so-called “Dreamers” – persons who entered the United States before the age of 18. The provision also allows an expedited process for Dreamers previously granted DACA (Deferred Action for Childhood Arrivals) benefits.
Section 1104 provides Temporary Protected Status (TPS) and Deferred Enforced Departure (DED) recipients with the ability to apply for an adjustment of status to permanent residency.
Section 3202 Transfer and Limitations on Authority to Suspend or Restrict the Entry of a Class would limit the President’s power under INA 212(f) to ban certain foreign nationals from entry into the United States. The President would have to consult with Congress and provide specific evidence support the need for the ban.
We will keep our clients updated on any developments with the passing of CA21.