Congress Proposes Bill to Transform U.S. Immigration System

On February 18, 2021, the U.S. Citizenship Act of 2021 (USCA) was introduced in both houses of Congress. This bill, which is modeled after a proposal laid out by President Joe Biden, would fundamentally transform the U.S. immigration system. However, this bill has a long way to go before becoming law, and it remains unclear whether it will have enough support in Congress to make it to President Biden’s desk.

Summary of Key Provisions

While much of the media coverage of the USCA has focused on how it will impact undocumented immigrants, the bill touches on virtually every aspect of the U.S. immigration system. Some of the key provisions are summarized below.

• Provides a path for U.S. citizenship for undocumented immigrants
  An undocumented immigrant who has been physically present in the United States since January 1, 2021, and who meets certain other requirements (e.g., passes a background check, pays taxes) would be able to apply to become a lawful prospective immigrant (LPI). As an LPI, the individual would be able to legally live and work in the U.S. After five years, if certain requirements are met, the person could apply to become a lawful permanent resident (i.e., “green card” holder). The person could then apply for U.S. citizenship after three years.
• Takes various steps to eliminate backlogs of family-based green cards
  The per-country cap on family-based green cards would be increased from 7 percent to 20 percent. The bill also would reclassify spouses and minor children of green card holders as immediate relatives. More importantly, the bill would recapture unused immigrant visas from fiscal years 1992 through 2020.
• Takes various steps to eliminate backlogs of employment-based green cards
  The total number of employment-based immigrant visas available per fiscal year would be increased from 140,000 to 170,000. The per-country cap for employment-based green cards would be completely eliminated. Further, as with the family-based categories, this bill would recapture unused employment-based green cards from 1992 through 2020. The bill also would exempt certain classes of foreign nationals from the direct numeric limitations on immigrant visas, including those with a doctoral degree in a STEM field from an accredited U.S. university, and foreign nationals who have an approved immigrant petition with a priority date from more than 10 years ago.
• Creates a pilot program to issue up to 10,000 employment-based immigrant visas to foreign nationals “whose employment is essential to the economic development strategies of the cities or counties in which they will live or work.”
• Reforms the H-4 visa category
  Allows H-4 dependent children to extend status beyond the age of 21 if certain conditions are met. The bill also would grant work authorization to H-4 spouses and children.
• Allows for the extension of F, H, L, or O status if at least 365 days have passed since the filing of a labor certification or I-140 for the individual. These individuals would also qualify to obtain work authorization under the bill.
• Removes certain barriers to immigrating to the United States
  Repeals certain immigration penalties, such as the 3- and 10-year bars. It also would provide more flexibility to apply for a waiver to inadmissibility.
• Authorizes the Secretary of Homeland Security to temporarily suspend the admission of immigrants in geographic areas or labor market sectors that are experiencing high levels of unemployment. It also would authorize (but not require) the Secretary to modify the H1B registration system to prioritize cap-subject cases based on the wages being offered.

Passage of Bill Remains Uncertain

As previously noted, the USCA is based on the provisions outlined by President Biden. Given that Democrats now control the White House and both houses of Congress, one might assume that passage of this bill was all-but-certain. In reality, however, this bill has a number of major hurdles to overcome, especially in the Senate.

The bill seems to have a decent chance of being passed by the House of Representatives, where only a simple majority is needed. In the Senate, however, 60 of the 100 members of the Senate must support the bill for it to be able to advance. That means, even if all 50 Democrats (including two independents who caucus with the Democrats) in the Senate vote in favor of the bill, the bill would fall 10 votes short. There are aspects of the bill that likely have bipartisan support, such as the removal of the per-country cap for employment-based cases, as well as various provisions to improve border security. But most Republicans, and possibly even some of the more conservative Democrats, may have trouble supporting this transformation of the U.S. immigration system, regardless of the fact that, for an entire generation, presidential candidates of both parties have recognized our “broken” immigration system and have run on the promise of fixing it.

Conclusion

It may be some time before we get a real sense of whether there is enough support for the bill to have a shot of being passed. Further, even if the bill is passed into law, there may be a number of substantive changes made to garner more support. In the meantime, MurthyDotCom will continue to closely track the bill. Subscribe to the free MurthyBulletin to receive weekly updates on important immigration topics, such as the USCA.

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