By Wassem M. Amin, Esq.
Officially titled “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013,” the bipartisan immigration reform bill (the “Bill”) introduced to the Senate on April 17, 2013 substantially reforms immigration laws in the United States. The legislation still has a long way to go, with a series of hearings in the Senate Judiciary Committee, the amendment process, and floor debate–before even any vote. In addition, the House also needs to pass corresponding legislation before the Bill actually becomes law. Having said that, however, the Bill is a substantial step in the right direction and contains several provisions that address much-needed shortfalls in current immigration law.
This Article briefly summarizes several key provisions in the 800+ pages of the Bill that will impact a wide and diverse range of immigrants and nonimmigrants as well as potentially having a substantial positive impact on the U.S. economy.
The Bill extends “Deferred Action for Childhood Arrivals” (“DACA”) to aliens who were present in the United States before December 31, 2011 and expands eligibility by removing the age restriction that DACA imposed. Under the Bill’s provisions, illegal aliens may qualify for a new lawful status called “Provisional Immigrant” status if the alien was: (1) physically present on the date of the application; (2) physically present in the United States on or before December 31, 2011; and (3) such presence was continuous except for brief and innocuous absence. The spouse or child of such an alien will also be eligible for Provisional Immigrant status if they were present in the United States on or before December 31, 2012.
However, the Bill limits this “window of opportunity” for illegal aliens’ ability to apply for Provisional Immigrant status to one year after its enactment, with the possibility for an extension of an additional 18-month period.
The initial period for Provisional Immigrant status is 6 years, renewable for another 6 years if the alien maintains his lawful status and meets certain employment criteria, as outlined in the Bill. Specifically, the Provisional Immigrant must establish that he or she was regularly employed throughout the duration of status and is not likely to become a public charge; or is able to show that their income throughout that period has not been under the Federal poverty level.
For aliens who were previously granted DACA status, the Bill allows them to petition for Provisional Immigrant status as well.
A [Long and Tough] Pathway to Citizenship
A key provision in the Bill is that it enables so-called Provisional Immigrants to apply for an adjustment of status and obtain permanent residency (i.e., the green card) if they maintain that status throughout, meet minimum employment and education requirements, and have not been absent from the United States for more than 180 days in any calendar year.
However–the Bill also includes a provision literally titled “Back of the Line.” Perhaps as a way to ‘punish’ illegal aliens, this provision requires illegal aliens who became Provisional Immigrants to wait until immigrant visas have become available for all approved petitions of lawful immigrants in other visa categories. If, and only if, there are immigrant visas remaining in the annual quotas, would a Provisional Immigrant be able to obtain permanent residency. In practice, this will make the road to citizenship for Provisional Immigrants a long and arduous one, which may take several years.
The DREAM Act
The Bill attempts to enact the long-applauded “Dream Act” which grants permanent resident status to certain aliens who came to the United States as children—without going through the lengthy process of “regular” Provisional Immigrants. Specifically, it will allow such aliens to be immediately eligible to adjust their status to that of a permanent resident is they meet the following criteria:
- The alien has been a registered Provisional Immigrant for at least 5 years;
- The alien was younger than 16 years old on the date they initially entered the United States;
- The alien obtained a GED or high school diploma from the United States; and
- The alien has completed, at least, 2 years in an accredited bachelor’s degree program or higher in the United States OR has served in the U.S. Military for at least 4 years.
Amendments to Employment H-1B Visas
The Bill increases the number of allotted annual visas in the H-1B category subject to the cap from the current limit of 65,000 annual visas to a 110,000 visas. This will be undoubtedly welcomed by the many employers and employees who were denied H-1B visas due to the annual cap. In fiscal year 2013, the cap was reached in just 5 days after April 1, 2012–the date USCIS starts accepting H-1B petitions.
An additional significant amendment is that the Bill proposes that spouses of H-1B employees be automatically granted work permits. Immigration reform activists have long criticized the fact that spouses were not allowed to work under the H-1B visa.
New “Retiree” Nonimmigrant Visa
A new provision in the Bill grants aliens above the age of 55 the ability to retire in the United States and stay indefinitely if they purchase a residential property in the United States for at least $500,000 and are physically present a minimum of 6 months out of each calendar year. However, a key restriction in this category is that prevents those who qualify from being able to obtain employment authorization (unless the work is related to managing their residential property).
New “W” Nonimmigrant Visa Category
Although the details on this new category are still unclear, it basically creates a whole new nonimmigrant employment visa specifically targeted to certain “shortage occupations.” The Bill imposes strict qualification and reporting requirements for both employers and employees under this category. However, its effect will be to allow more visas to be available under other categories, such as the H-1B. The number of visas allotted to the W-Employment category in the first year of enactment is 20,000. This number will be gradually increased to 75,000 visas by the fourth year.
New Category – “INVEST” Immigrant and Non-Immigrant Visas
An acronym for “Investing in New Venture, Entrepreneurial Startups, and Technologies,” the INVEST visa allows certain alien entrepreneurs the opportunity to receive an immigrant or nonimmigrant visa–depending on the size of their new venture or business.
To qualify for a nonimmigrant INVEST visa, the entrepreneur and/or the venture must meet the following minimum criteria:
- They receive a minimum investment from a “qualified angel investor” or a “qualified venture capitalist” (as these terms are defined by the Bill) of at least $100,000; OR
- The entrepreneur’s business generates a minimum of $250,000 in revenue for the 3 years preceding the visa petition and creates a minimum of 3 jobs for U.S. citizens or permanent residents.
- The nonimmigrant INVEST visa is granted for an initial period of 3 years, with the ability to renew it twice for 1 year periods (i.e., maximum 5 years).
To qualify for the immigrant INVEST visa, the entrepreneur and/or the venture must meet the following minimum criteria:
- They receive a minimum investment from a “super angel investor”, a “super venture capitalist” (this what they are called in the Bill!) or governmental grant of at least $500,000; OR
- The entrepreneur’s business generates a minimum of $750,000 in revenue for the 3 years preceding the visa petition and creates a minimum of 5 jobs for U.S. citizens or permanent residents.
- If the entrepreneur has an advanced STEM degree, then the job requirement is lowered to 4 instead of 5.
Additionally, under the EB-5 visa, the Bill proposes to permanently authorize the EB-5 Regional Center Program as well as increasing the number of visas allotted per year.
As mentioned, these amendments have not been, and may not ever be, enacted into law. However, strong bipartisan support for this Bill has many observers predicting that it withstands a significant chance of passing.
The full, 800+ pages of the Bill can be viewed here.
Wassem M. Amin, Esq., MBA is an Attorney at Dhar Law, LLP in Boston, MA. Wassem has extensive experience as a business advisor and consultant, domestically and abroad (in the Middle East region), having worked as a consultant for over 9 years. Wassem currently focuses his practice on Corporate Law, Business Immigration Law, and International Business Transactions; where he works with Firm Partners Vilas S. Dhar and Vikas Dhar to advise Regional Centers and individual investors on EB-5 Visa matters. For more information, please visit http://www.dharlawllp.com and email Wassem at firstname.lastname@example.org.
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