Immigration Reform Bill Summary: Pt 2 of 2

In Part 1 of this NewsBrief, MurthyDotCom readers were provided with an update and partial summary of the comprehensive immigration reform (CIR) proposal, S.744, Border Security, Economic Opportunity and Immigration Modernization Act of 2013. In Part 2 some of the key provisions are summarized that were not covered in Part 1, including provisions related to permanent residence, H1Bs, and the creation of a new “W” nonimmigrant category.

Merit-Based Permanent Residence Programs

The bill proposes two separate merit-based point systems for granting permanent residence (commonly referred to as “green card” status). The longer-term merit-based system would not go into effect until five years after enactment of the CIR legislation. Points would be awarded based upon various factors, including: education, employment, length of residence in the United States, and other considerations. There is some flexibility within the system to allocate additional numbers, if the rate of U.S. unemployment is sufficiently low.

If this bill becomes law, a more immediate merit-based system would go into effect in October 2014. Under this system, immigrant visas would be allocated to those with employment-based green card cases that have been pending for at least three years prior to the enactment of CIR. The same benefit would extend to those with family-based cases pending for at least five years prior to enactment. The same provisions would also extend to certain foreign national workers who have been lawfully in the United States for at least ten years.

H1B Annual Cap Would be Increased

There has been much discussion regarding the proposed legislation’s efforts to address the future of the H1B program. Under S. 744, the H1B annual limit, or “cap”, would be raised from the current level of 65,000 to 110,000. The advanced-degree exemptions from the cap (i.e. master’s cap) would increase by 5,000 to 25,000.

The proposal contains further provisions for additional increases to the cap limit. These provisions would allow the H1B cap to expand to a maximum annual limit of 180,000. These increases would be limited to up to 10,000 per year, based on a formula that considers the volume of H1B cap filings that exceed the cap in a particular fiscal year, and the level of unemployment in certain H1B-qualified occupations.

The increase in the cap numbers would be counterbalanced by requirements to engage in recruitment of U.S. workers as a prerequisite to H1B filings. There are also changes proposed to the requirements regarding payment levels appropriate for H1B workers.

Favorable Provisions for H1B Workers, Spouses

The proposed CIR would benefit many H1B workers by creating a transition time of 60 days between H1B jobs. In addition, spouses of H1B workers would be allowed to obtain work authorization, provided that the home country provides the same treatment for spouses of U.S. workers.

H1B “Dependent” Employers to Pay Higher Fees

H1B dependent employers would face severe penalties and restrictions. These employers would have to pay higher wages and significantly higher fees than other employers of H1B workers. Employers with 50 or more employees would face penalties of $5,000 per additional sponsored worker if more than 30 percent but less than 50 percent of their workforce is in H1B or L-1 status. This penalty would increase to $10,000 per additional H1B or L-1 employee for employers with a workforce consisting of more than 50 percent H1B or L-1 workers. CIR would carve out exceptions for employers to the payment of such penalties if the workers are the beneficiaries of pending green card cases.

Certain H1B and L-1 dependent employment practices would be phased out altogether. The new CIR statute would initially prohibit employers from having a staff made up of more than 75 percent H1B or L-1 employees. This percentage would be reduced to 65 percent, and then 50 percent by 2016.

New W Nonimmigrant Category for Lower-Skilled Workers

The CIR bill, if enacted, would create an entirely new nonimmigrant category: the W visa. This category would be geared toward lower-skilled workers to fill certain designated positions. The proposed legislation would create an elaborate employer registration system, and would establish a new bureau within the USCIS to identify occupations and areas in which there is a shortage of U.S. workers. The bill would also regulate the wages and annual limits (i.e. a “cap”) for such workers.

In order to participate in the W visa program, employers would be required to register for the program and comply with various provisions. Employers found to be in violation of certain provisions, including those related to wages and employee safety, would no longer be permitted to employ foreign nationals in W status.

Mandatory E-Verify

Another key component of the proposed legislation is mandatory employer compliance with the E-Verify system for confirming worker employment authorization. Employers would be phased into the program over the course of five years, based upon the size of the employer’s workforce. The bill proposes enhancement to the E-Verify system, including the creation of a uniform biometric work authorization document with the photographs of work-authorized foreign nationals stored within the E-Verify system.


We again remind MurthyDotCom readers that the provisions discussed in this article are, at this time, purely proposals. It is important to continue to work within existing immigration laws. In fact, some of the proposed benefits in the bill are limited to those who have green card filings under the current system.

The bill is an ambitious effort to overhaul the current immigration system, with the addition of entirely new concepts, new nonimmigrant categories, and supporting bureaucratic structures. We at the Murthy Law Firm will continue to provide updated information on CIR, and how it may impact the millions of people living in the United States and those wishing to make their home here.


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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.