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Summary of Key Business Immigration Provisions in S. 1639

6/21/07 AILA Doc. No. 07062167. Business Immigration, H-1B & H-1B1 Specialty Occupation, L-1 Intracompany Transferee

The Border Security, Economic Opportunity, and Immigration Reform Act of 2007 (S. 1639) would replace the current employer-sponsored immigration system with a merit-based points system, and would institute reforms to the H-1B, L, and Conrad 30 nonimmigrant visa programs.

MERIT-BASED SYSTEM FOR IMMIGRANT VISAS (Title V)

Creation of Merit-Based System (Section 502)

Section 502 would largely replace the current employer-sponsored system with a merit-based preference system.

  • Eliminates employment preference categories 1, 2, and 3. Also eliminates the labor certification process.
  • Special Immigrant and EB-5 categories: Section 502 maintains the special immigrant and EB-5 categories but cuts their numbers (total of 7,000 available annually).
  • Gap in Employment-Based Green Cards: If passed in current form, Section 502 would reject immigrant visa petitions filed after June 18, 2007, and new green cards under the merit system most likely would not be available until October 1, 2008.

Numerical Limits on Merit-Based Immigrants (Section 501)

Worldwide Ceiling - Sets three different worldwide ceiling levels for merit-based immigrants:

  • First five fiscal years post-enactment will be set at the level made available during FY05 (staff reporting this number to be 247K).
    • 10K set aside for exceptional Y visa holders (although Y program won't be up and running for at least 18 months - 2 years)
    • 90K set aside for reduction of employment-based backlog existing on date of enactment
  • Next 3 or 4 fiscal years (until first undocumented can start adjusting), sets level at 140K
    • 10K set aside for exceptional Y visa holders
    • 90K set aside for employment-based reduction of backlog existing on date of enactment
  • Once undocumented start adjusting (outside the worldwide ceilings), sets level at 380K
    • 10K set aside for exceptional Y visa holders

Per-Country Limits (Section 508): Increases per-country limits on merit-based categories to 10 percent.

Merit-Based Evaluation System for Immigrants (Section 502)

Merit points are initially assigned as follows with a total of 100 points that could be earned. A separate point schedule for adjusting Z visa holders is also included in the bill.

  • Employment: 47 maximum total points can be earned for:
    • U.S. employment in a specialty occupation (20 points);
    • U.S. employment in a high demand occupation (16 points);
    • U.S. employment in a science, technology, engineering, mathematics (STEM) or health-related field, current for at least one year (8 points)
    • From employer willing to pay 50% of LPR application fee: U.S. job offer or U.S. employer attestation for current employee (6 points)
    • U.S. work experience (2 points per year/10 points max)
    • Age of worker between 25-39 (3 points)
  • Education: 28 maximum total points can be earned for:
    • Advanced Graduate degree (20 points)
    • Bachelor's degree (16 points)
    • Associate's degree (10 points)
    • High School diploma/GED (6 points)
    • Certified vocational degree (5 points)
    • DOL registered apprenticeship (8 points)
    • Associate's degree or above in STEM field (8 points)
  • English/Civics: 15 total points can be earned for:
    • Native English speaker or TOEFL score 75 or above (15 points)
    • TOEFL score 60-75 (10 points)
    • Pass USCIS Citizenship test in English and civics (6 points)
  • Extended Family: for those with total of 55 or above in above categories, 10 total points can be earned for:
    • Adult (21 or over) child of USC (8 points)
    • Adult (21 or over) child of LPR (6 points)
    • Sibling of USC or LPR (4 points)
    • Visa application in any category above after May 1, 2005 (2 points)

Evaluation of Selection Criteria: Creates a standing commission on immigration and labor markets for evaluating the relative weighting and selection criteria included in the point system.

Petition Process: DHS has authority to establish regulations regarding petition process for merit-based system. Petitions that have not been granted within a 3-year period are deemed denied.

REFORMS TO H-1B, L, AND CONRAD 30 NONIMMIGRANT PROGRAMS

Reforms to the H-1B Nonimmigrant Visa Program

Increase in H-1B Cap: Raises the FY08 cap to 115,000 and indicates that in subsequent years the Secretary may issue additional H-1B visas (pursuant to new regulations that must be drafted) up to a 180,000 cap. (Section 419)

Definition of Specialty Occupation: Revises the definition of specialty occupation to exclude the "experience in the specialty" provision in section 214(i)(2)(C). (Section 419)

Extension of Six-Year Limit on H-1B Status: Provides an extension of the H-1B status beyond the six-year limit for merit-based adjustment applicants in one-year increments, but repeals sections 106(a) & (b) of the American Competitiveness in the Twenty-first Century Act of 2000. (Section 419)

Employer Requirements (Section 420):

  • Applies the non-displacement and good faith recruitment requirements to all H-1B employers.
  • Changes the non-displacement requirement to prohibit employers from displacing a U.S. worker 180 days before and after filing, and requires all employers to make good faith effort to recruit U.S. workers.
  • Limits an employer of 50 or more employees to having only up to 50% of his/her employees be H-1Bs.
  • Prohibits employers from advertising exclusively for H-1Bs.

New H-1B Fees (Section 715): Creates a supplemental fee of $3,500 (or $1750 for employers with less than 25 full-time employees) to be paid in addition to existing H-1B fees. The supplement fee will be used to fund the American Competitiveness Scholarship Program.

Reforms to the L-1 Nonimmigrant Visa Program (Section 422)

Petitions for Employment in New Offices: Requires that if the petitioner is to be employed in a new office, petition may only be approved for one year if the petitioner has not been the beneficiary of two or more petitions with in the past two years, and only if the employer has:

  • An adequate business plan
  • Office space to carry out the plan
  • Finances to start the business upon approval of the petition

    Extension of Such Petitions: An extension of the petition is not available until the employer and petitioner can show they have been doing business in the manner required by this section for the 12 month period.

    Dependent Spouses: The dependent spouse of the L-1 may not work during the 12 months.

    Conrad 30 Program - Medical Services in Underserved Areas (Section 425)

    • Makes the Conrad 30 program permanent.
    • Creates a 3-year pilot program to allow certain underserved states that have used all of their 30 waiver slots in the Conrad 30 program to get an additional 20 slots, provided that certain highly underserved rural states (that have had trouble recruiting Conrad doctors) have received a guaranteed minimum number of Conrad doctors. Sunsets the pilot program after three years.
    • Makes medical residents ineligible for H-1B nonimmigrant status.
    • Allows doctors to begin working within 90 days of completing their residency and fellowship programs or 90 days from the date of approval of the waiver, whichever is later.