Favorable Proposal on H1B, L-1, and Immigrant Visa Numbers
Posted Oct 28, 2004
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The U.S. Senate Judiciary Committee passed a proposal on October 20, 2005 to provide limited H1B and retrogression relief. Paired with the relief provisions were proposed additional immigration fees for certain cases. It is important to understand that these proposals are not yet law. In order to become law, both the U.S. Senate and the U.S. House of Representatives would have to approve the proposal in a bill, and the President would have to sign the bill. There is no guarantee that it will pass in its present form, or even at all. However, it is a positive sign that there is some movement in legislation aimed at addressing the problems with the H1B cap and retrogression.
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An outline of these proposals is included below.
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New L-1 Proposed Fees
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The proposal would create a new $750 fee on L-1 petitions. This fee would not be charged for L-1 extensions. Employers would not be permitted to charge this fee to L-1 employees. The Congressional Budget Office (CBO) estimated that these fees would generate at least $53 million in additional immigration fees each year beyond fiscal year 2006.
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Proposal Adds 30,000 More H1Bs for an Increased Fee
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In the fiscal years 1992 through 2004, more H1B cap numbers were available than needed. During these years, approximately 310,000 H1B numbers went unused. The proposal would make these numbers available until they run out, at a rate of no more than 30,000 additional H1Bs per fiscal year. Persons wanting to seek one of these H1Bs after the normal H1B cap had been met for the fiscal year would be required to pay an additional $500 fee. The CBO believes it is likely that all 30,000 H1Bs would be sought each year.
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Proposed Increase in I-140 Fees
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The proposal would impose an additional $500 fee on I-140 petitions for the EB1, EB2, and EB3 categories. The CBO estimated that these fees would also generate up to $53 million in additional immigration fees each year beyond fiscal year 2006.
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Proposal to Allow I-485 Filings While Priority Date Not Current
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The proposal would permit persons unable to obtain the green card due to retrogression to file the I-485 application without having to wait for the priority date to become current. Such cases could not be approved, however, until the priority dates became current.
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Recapture Up to 90,000 Unused Visa Numbers Each Year
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The proposal would also permit the immediate use of previously unused employment-based visa numbers from prior years. This would be limited to 90,000 per year. However, most estimates indicate that there are only between 90,000 and 100,000 total numbers that remain unused. Therefore, while this would likely eliminate or substantially improve the retrogression problem for the short term, it is not a long-term solution.
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Exemption of All Dependents from the Visa Count
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Currently, dependents of the primary applicant are also counted against the limited employment-based visa numbers. Therefore, if the primary applicant has a spouse and three eligible children, when each of the family members gets a green card based upon the single employment-based filing, five numbers are subtracted from the available employment-based immigrant visa category. The proposal would exempt all dependents from the count so that, even if a family of five applies, only the person for whom the employment-based petition was actually filed would count against the cap. This potentially would free up to 80,000 to 90,000 EB immigrant visa numbers per year. While this may not eliminate retrogression altogether, it would make substantial strides toward improvement in the availability of visa numbers and decreased wait times until visa numbers are available.
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Conclusion
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Until the Senate and the House, who separately have passed differing versions of this legislation, meet and reconcile those differences, one should not assume that any of these measures will be passed. There previously have been favorable measures in the bill from one side that did not survive to the final version of the bill. Therefore, we at The Law Office of Sheela Murthy do not recommend that anyone make definitive plans based on the proposals passed by the Senate Judiciary Committee. We will continue to carefully monitor this topic that is important to so many of our MurthyDotCom and MurthyBulletin readers. Updates will be posted as soon as new information becomes available.
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