U.S. Senate Passes Immigration Bill
Posted Jun 02, 2006
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As many of our MurthyDotCom and MurthyBulletin readers may have learned from recent reports in the news, the U.S. Senate has passed its version of comprehensive immigration reform. The bill, S. 2611, also known as the "Hagel-Martinez compromise" passed by a vote of 62 to 36 after a long and heated debate. As always, we remind readers that, until approved by both the U.S. House of Representatives and the U.S. Senate and signed by the President, a bill does not become law. Therefore, the passage of the bill by the U.S. Senate alone does not change existing immigration laws. The Senate view of immigration solutions significantly differs from the legislation in the House of Representatives. The Senate and House must now negotiate the matter in conference.
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Key provisions of the Senate bill are summarized here, with focus on those provisions that may be of particular interest to MurthyDotCom and MurthyBulletin readers:
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Visa Backlog Relief / Family Unity
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Employment : In a measure that would be welcomed by many, the bill increases the employment-based visa numbers by 310,000 each year for a ten-year period. This would be a substantial increase with the potential for bringing relief to those who currently suffer due to retrogression / non-availability of immigrant visa numbers. Not all of these new numbers, however, would be available under the same types of allocations that are currently in place. There are special allocations of 30% of the employment-based cap for those who are deemed to be "essential workers." These are semi-skilled and unskilled workers, primarily performing jobs for which U.S. workers generally cannot be found.
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Family : Those who currently are in the family-based backlogs would obtain green cards before any permanent resident status would be granted to individuals who are currently undocumented workers or out of status. In order to address the family backlogs in visa availability, the "cap" for family cases would be raised by 260,000 per year. This may be quite helpful to those of our readers waiting in family backlogs. We at the Murthy Law Firm know that many who married after obtaining permanent resident status are suffering separation and long waiting times for eligibility to obtain permanent residence for their spouses. Many of these people are forced to live separately due to the non-availability of family-preference visa numbers. If passed, this bill would help alleviate that problem to some extent.
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Highly-Skilled Immigration Reform
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Another provision of the Senate bill that would be beneficial to many of our readers would increase the H1B cap from 65,000 to 115,000. It would also have an escalator for the numbers, based on market factors. Additionally, there would be broader exemptions, based on degrees and categories, rather than solely the nature of the employer. The exemptions would cover advanced degree holders with degrees in science, technology, engineering, and math (STEM), as well as persons of extraordinary ability and outstanding professors / researchers.
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Another important part of the Highly-Skilled Immigration Reforms involves students. The student visa rules would allow for dual intent. Universities and institutions of higher learning have been lobbying for these provisions. They were adversely impacted by the decrease in international students after September 11, 2001. The dual intent for students would make it easier for qualified students to obtain visas or to change to student status from within the U.S., eliminating the need to show strong family and financial ties to the home country. The provisions would also expand the Optional Practical Training (OPT) period, which is now set at one year.
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Temporary "Essential" Workers Get Some Relief
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There would be a new program, complete with protections for the labor market, for temporary "essential" workers. Essential workers are semi-skilled and unskilled workers in jobs that are generally not desirable to U.S. workers. These include certain restaurant positions, hotel service jobs, landscape labor, home healthcare services, food production work, and similar positions. The program would provide employment authorization for three years, with an additional three-year extension.
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Through the provisions of the Senate bill, those currently considered "undocumented," or who lack the appropriate papers to work legally in the U.S., could qualify for this category if they entered after January 2004. They would have to leave the United States to apply, but would not suffer the 3- or 10-year bar on their reentry.
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DREAM Act
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The legislation also contains relief known as the DREAM Act. This would benefit undocumented high school students, many of whom were brought to the United States as young children. The news media have recounted a number of sympathetic stories about children who would be able to benefit from this proposed act. Although they are in the U.S. illegally, it is through no fault of their own.
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To qualify, should this provision of the Senate bill be enacted, a student must have entered the U.S. before reaching age 16 and must have been present for five years prior to enactment of the law, should that occur. S/he must graduate from high school or obtain a GED. If these requirements are met, the student would be able to apply for a 6-year conditional status. After six years, if the student has graduated from college, completed two years in a degree program, or served in the U.S. Armed Forces, the conditions would be removed and the individual could become a permanent resident.
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Undocumented Workers
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Five Years' Physical Presence Required in U.S. : If passed in its current version, the senate bill would provide a path to legal status for undocumented persons who are currently in the U.S. If they were in the U.S. for five years prior to April 5, 2006, these individuals would be eligible for employment authorization for six years. They would need to pay a $2,000 fine and meet an English and civics requirement, as well as pass certain background checks. They would also have to pay any taxes that are owed. They would be eligible for lawful permanent resident status after those in the current family backlogs have cleared. Once they were permanent residents for five years, they would be eligible to apply for citizenship.
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Less than Five Years' Physical Presence : Undocumented persons in the U.S. for more than two years but fewer than five years, would be granted "Deferred Mandatory Departure" (DMD) status. They would be eligible for work authorization, but would have to jump through a number of hoops to obtain eligibility for permanent status. They would have to leave the U.S. within three years, but could apply for readmission before leaving, so as to clear the path for their return.
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No Special Benefits for the Undocumented : Many MurthyDotCom and MurthyBulletin readers, the vast majority of whom are legal, documented immigrants, and their employers, have concerns about the inequity of persons illegally in the U.S. receiving benefits not enjoyed by legal immigrants. Some have questioned why they should try so hard to comply with the laws and maintain their statuses, if they would be better off as undocumented workers under immigration reform. They also have concerns about undocumented workers bumping them out of the queue for their green cards.
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As is evident from the above, relief proposed for undocumented workers would not impact employment-based cases by putting anyone to the front of the line. Additionally, there would not be any type of automatic citizenship, as it will still be by application after five years of permanent resident status. Moreover, as described, the Senate bill contains provisions to increase employment visa numbers that would be a significant relief to many who are pursuing or will pursue employment-based green cards.
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Conclusion
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The immigration debate is ongoing, and some of the provisions outlined here may change or be eliminated entirely in any final immigration bill. The legislative process is full of give and take, with each side compromising on various issues. Therefore, we do not recommend taking any action or making serious plans based on any provisions of this bill. It is also premature for one to pay for assistance with related immigration paperwork until and unless the final bill has been passed by the House and Senate and signed by the President. At the Murthy Law Firm, we will continue to follow this important matter and will advise our readers of any new legislation that changes the immigration laws affecting them.