Senate Passes Immigration Relief
Posted Nov 11, 2005
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Regular readers of MurthyDotCom and the MurthyBulletin will recall that the U.S. Senate Judiciary Committee approved a proposal on October 20, 2005 to address the problems many employers and foreign nationals are facing as a result of the H1B cap and immigrant visa number retrogression. Announced in our October 28, 2005 article, Favorable Proposal on H1B, L-1, and Immigrant Visa Numbers, available on MurthyDotCom, this legislation has continued to move forward as part of a budget reconciliation bill with the immigration provisions intact.
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The reconciliation package passed the U.S. Senate, with a 52 to 47 vote. Concerted efforts were made in the form of a proposed amendment to remove the immigration benefits provisions from this legislation. Fortunately, and based in part upon efforts made by the business community and others who support balanced immigration policies, the proposed amendment was defeated.
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The increased H1B numbers and the measures to remedy retrogression are not yet law, however. The U.S. House of Representatives has a very different version of the Budget Reconciliation Bill that does not have the favorable immigration provisions. The House and Senate versions of the Bill must be reconciled, and there is likely to be a heated battle over which provisions will finally remain. The trade-off for these provisions is a series of significant increases in immigration filing fees and surcharges.
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Following is a recap of some of the immigration provisions at issue.
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 Retrogression

  • Unused employment-based visa numbers would be added to the available numbers for immediate use. There would be a limit of this "add in" of 90,000 per year, and it appears that there are only about 90,000 to 100,000 of these unused immigrant visa numbers available. Thus, this would be a short-term improvement.

  • Exempt derivative spouses and children from the annual immigrant visa cap count. This would be an enormous improvement and a significantly longer-term solution to the retrogression problem. Only the actual beneficiary would be counted against the numerical immigrant visa limits.

  • Allow for the I-485 filing even if an immigrant visa number is not available. This would also not really solve the problem, as people would just have to wait longer at the I-485 stage. It would help address certain situations, however, especially involving dependant spouses and children. It would also facilitate the ability to obtain employment authorization and use of AC21 portability.

Recapture Unused H1B Numbers
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The proposal would also allow for the recapture of unused H1B numbers from the time when the cap was significantly higher. There are about 300,000 of these numbers. The legislation proposes to make 30,000 of these unused numbers available in each fiscal year, in addition to the 65,000 existing cap for each fiscal year. This would certainly contribute toward alleviating the H1B cap problem for the next ten years.
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Conclusion
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We at MurthyDotCom and the MurthyBulletin will follow this legislation and share updates on these important provisions that will affect the lives of so many of our readers. We hope to report  positive news in the near future.

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