What Biden’s Immigration Reform Bill Means for High-Skilled Immigration

Shortly after taking office on January 20, 2021, President Biden announced plans to introduce a bill into Congress to dramatically reform U.S. immigration law. If it becomes law, the U.S. Citizenship Act of 2021 would be the first major immigration overhaul since 2000. In addition to providing a pathway to legal status for over 11 million undocumented individuals currently residing in the United States, the Act would have a far-reaching and for the most part, positive impact on U.S. employers and foreign workers. Most importantly, the proposal would phase out the per-country quotas on employment-based green cards. These quotas have unfairly disadvantaged persons born in certain countries. The Act would also clear out the current backlog for green card applicants who are already in line.


In an important announcement on January 26, 2021, President Biden signaled a willingness to “split up” this bill into separate legislation. This suggests that some features of Biden’s immigration agenda that favor high-skilled immigration may have a much greater chance of succeeding in Congress than previous similar efforts at reform made over the last two decades.


Background


Over the last 15 years, there have been several efforts to reform immigration law, both for undocumented foreign nationals and high-skilled workers. In 2006, the Comprehensive Immigration Reform Act was passed in the Senate (S. 2671), but failed to be brought to a vote in the House. In 2013, the so-called “Gang of Eight,” which comprised a group of leading Republican and Democratic Senators, introduced the Border Security, Economic Opportunity, and Immigration Modernization Act (S.744), which also passed in the Senate by a large margin, but failed to gain sufficient support in the House. Most recently, in 2020, another group of bipartisan Senators introduced the Fairness for High Skilled Immigration Act of 2020 (S.386), which focused almost exclusively on employment-based immigration. As with earlier efforts, the bill passed the Senate, but failed to be reconciled with the House version before the end of the Congressional term last December.


While many of the provisions in the several proposed laws introduced in Congress have received broad support from both parties, the entire bills have failed to win sufficient support to pass both houses. Most Congressmembers favor liberalizing high-skilled employment-based immigration, but many – generally Republicans – are opposed to what has been portrayed as amnesty for undocumented foreign nationals. Many other Congressmembers, including much of the Democratic leadership, have been unwilling to decouple the employment-based provisions from the provisions aimed at fostering family unity, and addressing humanitarian concerns. Many other Senators and Representatives, in addition to the most recent President, have opposed immigration in general in favor of stricter enforcement policies, and have been particularly hostile to laws that are considered insufficiently protective of U.S. workers. The Biden Administration’s announcement suggests a more pragmatic approach to securing immigration reform. Splitting the employment-based provisions of his immigration reform proposal and introducing them as separate bills, may make these provisions more palatable enough to Republican Senators to overcome a filibuster in the Senate.


Summary of Key Provisions


The key provisions of the proposed bill are outlined below. Please note that as of today, the Biden Administration has yet to introduce the U.S. Citizenship Act of 2021 into Congress, or provide a draft of the actual text of the bill, or parts thereof. The summary below is based on the very general Fact Sheet provided by the Biden Administration in a press release. Our summary is also listed in order of most relevant to business immigration, and not in the order provided in the Biden Administration’s summary.

  • Overhaul of Employment-Based Green Card Quota System

The bill would dramatically change the availability of green card numbers in the employment-based visa categories, and reduce wait times by:


  • Clearing out the current quota backlog

  • Removing the per-country limits on green cards

  • Recapturing unused green card visas from previous years


  • Provisions Benefiting Persons with U.S. advanced STEM degrees

Without providing specifics, the Biden Administration’s summary of its proposed bill aims to “makes it easier for graduates of U.S. universities with advanced STEM degrees to stay in the United States.”

  • Provide Work Authorization to Dependents of H-1B workers

Although current regulations allow work authorization for spouses of H-1B workers who have reached a certain milestone in the green card process, the Biden Administration’s announcement suggests that this would be opened up to all dependents, including children, without regard to whether the green card process has been started.

  • Provide “Age Out” protection for Children of Foreign Workers

The proposed bill would provide protection for children of foreign workers who are at risk of losing their eligibility for a green card or other immigration benefits when they turn 21 years old.

  • Pilot Program to Stimulate Regional Economic Growth

The proposed bill would also create a pilot program to adjust green card availability based on macroeconomic conditions.

  • Provisions to Protect U.S. Workers from “Unfair Competition”

Without providing specifics, the Biden Administration’s proposal suggests several efforts to protect U.S. workers from “unfair competition,” and to also enhance protections for the foreign workers themselves. These include:

  • Incentivize higher wages for non-immigrant, high-skilled visas to prevent unfair competition with American workers.

  • Protect workers from exploitation and improve the employment verification process.

  • Establish a commission to make recommendations for improving the employment verification process.

  • Provide additional protection to “whistleblower” undocumented foreign workers who report serious labor violations


  • Elimination of the “Unlawful Presence” Bars

The proposed bill would eliminate the 3 and 10-year bars for persons who overstay their authorization to remain in the United States. This proposal would remove a longstanding provision of the immigration law which is viewed by many as unduly harsh to foreign nationals who in many cases have unwittingly overstayed their authorized stay.

  • Improved Border Enforcement and Infrastructure

The proposed bill would supplement existing border resources with technology and infrastructure to expedite screening and ability to identify narcotics, and would enhance current means of processing asylum applicants.

  • Create an Earned Roadmap to Citizenship for Undocumented Individuals

The proposed bill would allow undocumented individuals to apply for temporary legal status, with the ability to apply for green cards after five years, if they pass criminal and national security background checks and pay their taxes. The bill would also allow “Dreamers” (DACA, or Deferred Action for Childhood Arrival, recipients), persons in temporary protected status (TPS), and “immigrant farmworkers” to apply for permanent residency immediately.


After three years, all green card holders who were physically present in the United States on January 1, 2021 are eligible to apply for citizenship, provided they, demonstrate knowledge of English, pass background checks and meet certain other requirements.

  • Family Unity

The proposed bill would clear current visa backlogs and increase the per-country quotas for family-based immigrant visa categories. In addition, it would allow immigrants with approved family-sponsorship petitions to join family in the United States on a temporary basis while they wait for their green cards to become available.

  • Protection Against Discrimination

The proposed bill would introduce new measures to eliminate discrimination for LGBTQ+ families, and persons based on religion.

  • Increase the Diversity Lottery Numbers

The bill would expand the diversity lottery program from the current 55,000 allocation to 80,000.

  • Change in Nomenclature

In a symbolic gesture, the bill would change the term “alien” to “noncitizen” in the immigration law.

  • Other Provisions

The proposed bill would also contain a number of other provisions to protect asylum applicants, “crack down” on cross-border organized crime, improve professionalism of CBP and border patrol officers, enhance processing and reduce backlogs in the immigration courts, and address the root cause of illegal migration, with efforts to alleviate poverty and crime in certain Latin American countries.


We will provide more detail and analysis once the text of the bill is made available.


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