New Immigration Reform Bill: Merit-Based Immigration, Family and Employment-Based Immigration Provisions

This Summary will outline the key provisions of the Immigration Reform Bill “Border Security, Economic Opportunity, and Immigration Modernization Act” and will focus mainly on the third large section of the Bill, Future Immigration.

This part of the Bill encompasses the provisions covering new Merit-Based Immigration System, Family-Based Immigration and Employment-Based Immigration. Below we will summarize the main points for each of these sections.

*NOTE: We would like to clarify for our readers that this section applies to “immigrant visas,” which means that after admittance to the U.S. the individuals will have lawful permanent resident status (i.e. will have green cards). This section of the Bill does not refer to nonimmigrant temporary visas.

Follow our blog for the bill’s summary on nonimmigrant visas.

* Please note the bill is not yet the law. It will become the law only if it passes the Senate and the House of Representatives and is signed by the President.

Part I. Merit-Based Immigration System

The bill proposes the creation of a new merit-based visa and points system as a way of legal immigration. Being admitted to the U.S. with a Merit-Based Immigrant Visa means obtaining a lawful permanent resident status (i.e. green card).

Main highlights of the new system:

 1) Diversity Visa Lottery is eliminated and replaced with Merit-Based Points
 2) Merit-Based System is divided into “Track One” and “Track Two” Immigrant
 3) “Track One” Merit-Based System will allow individuals to qualify for permanent
residency (i.e. green card) under the following basic provisions:
• Awards points specified by the act to applicants based on education, employment experience, exceptional employment record, occupation, length of residence in the U.S., family ties in the U.S., knowledge of English language, etc.

• The more qualifying factors that earn points the individual has, the more points he/she will earn
• Individuals with the most points will get the immigrant visas
• Individuals in Registered Provisional Immigrant Status (RPI) or with a pending or approved immigrant petition in another category are not eligible to obtain permanent resident status under the Track One point system
• Initially provides for 120,000 immigrant visas based on the point system that may increase in the future and allows for recapture of unused visas
 4) “Track Two” Merit-Based System will give lawful permanent residency to
• individuals lawfully present and authorized for employment in the U.S. for over 10 years
• beneficiaries of family- and employment-based immigrant petitions pending for 5 years and filed prior to enactment of the Bill.

Part II. Family-Based Immigration Provisions

The Bill proposes the following important updates to the Family-Based Immigration System:
1. Children and spouses of Lawful Permanent Residents will be able to immigrate immediately

Under the new system: children and spouses of lawful permanent residents (“green card holders”) will be considered “immediate relatives” and will be able to immigrate to the U.S. immediately as if they were children or spouses of U.S. citizens.

Compared to the current law: children and spouses of lawful permanent residents (LPR) cannot immediately immigrate to the U.S. and have to wait several years outside of the U.S. (or in the U.S. if they can independently qualify for another status, such as for example F-1, H-1B, L-1, O-1, etc.) before immigrant visas in their category become available. LPR family members are not even provided a separate LPR dependent visa category that would allow them to be in the U.S. to wait for visa numbers. Current law places relatives of LPRs at severe disadvantage and promotes family separation.

2. The bill narrows down family-based categories under which individuals can immigrate to the U.S.

Under the new system:

• There will be only the following family-based categories: unmarried adult children (over 21) of U.S. citizens, married sons and daughters of U.S. citizens under the age of 31, and unmarried sons and daughters (over 21) of LPRs.

• The category of sibling of U.S. citizen will be eliminated 18 months after the enactment.

• Aged out children (who are 21 or older at the time visa number becomes available in the category) will have their petitions automatically converted to petitions of unmarried son or daughter of an LPR upon the parent’s admission to the U.S. as a permanent resident. The children will retain the priority date of the original petition.

Compared to the current law: there are 4 preference categories based on family relationships, including F-1, Unmarried Sons and Daughters (over 21) of U.S. Citizens; F-2, Spouses and Children (under 21), and Unmarried Sons and Daughters of Permanent Residents (over 21); F-3, Married Sons and Daughters of U.S. Citizens; and F-4, Siblings of U.S. citizens.

Under the current law, there is no age restriction for married sons and daughters of U.S. citizens.

*Note: If you are a U.S. citizen who would like to petition for brother/sister outside of the U.S. or for a married son or daughter over the age of 31, consider doing it before these categories are eliminated.

3. Waivers of Inadmissibility

a) Under the new system: parents of U.S. citizens or LPRs will be able to file waivers of inadmissibility for the 3- and 10-year bars (for unlawful presence in the U.S.). Parents who have entered illegally and have become subject to the unlawful presence bars will be able to file waivers and prove hardship to their USC or LPR children. In addition, it will be enough to prove just “hardship” as opposed to the standard of “extreme hardship” that exists today.

Compared to the current law: parents of U.S. citizens or LPRs cannot apply for waivers of inadmissibility of their unlawful presence bars, and they cannot prove hardship to their children, and thus cannot legalize their status. As a result, parents of USC and LPRs are forced to stay in the shadows of the immigration system.

b) Under the new system: limiting the scope of inadmissibility for misrepresentation and false claim to U.S. citizenship.

• The bill adds a 3-year limit on past representations that trigger inadmissibility.

• Requires that false claims to citizenship be “knowing” and exempts children under 18 and those without the mental capacity to make a false claim
• Creates a waiver for misrepresentation and false claims to citizenship that is based upon extreme hardship to the noncitizen or a qualifying relative.

Compared to the current law: no waiver for false claims to U.S. citizenship (allows only for few exemptions) and no time period on past misrepresentations.

4. Other Important Provisions

 • The bill revives V visa to allow certain individuals with approved family petition to live and work in the U.S. or visit the U.S.

 • The bill expands eligibility for K fiancé and spouse visas to Lawful Permanent Residents.

 • The bill allows parents to file an immigrant petition for a stepchild who is under 21 (changed from 18)
 • The bill gives more authority to Immigration Judges and DHS officers to terminate deportation proceedings or waive inadmissibility based on humanitarian grounds (considering public interest and hardship to U.S. citizen or LPR parent, spouse or child of the individual).

Part III. Employment-Based Immigration Provisions

The Bill proposes the following important updates to the Employment-Based Immigration System:
1. Certain categories of individuals will no longer be subject to annual numerical limitations:

• Dependents (spouses and children) of employment-based immigrants;
• EB-1 category, including aliens with extraordinary abilities, outstanding professors and researchers, and multinational executives and managers;
• PhD holders in any field from a U.S. university or foreign equivalent degree holders
• Individuals with advanced degrees in a STEM field (science, technology, engineering or mathematics)
a) If education was obtained from a U.S. institution of higher education within 5 years before filing of the petition and
 b) Has an offer of employment from a U.S. employer in a related field

• Physicians who have completed the J-1 foreign residency requirements or obtained a waiver
2. The bill removes the requirement of a labor certification for STEM workers (also known as PERM process).

3. The bill eliminates per-country immigrant visa limitations for China, India, Mexico and the Philippines.

4. The bill increases the number of immigrant visas available for employment-based categories and allows for recapture of unused visas (for EB-2 and EB-3 categories visa levels will increase up to 40% compared to existing 28.6%).

5. The bill permanently authorizes EB-5 Regional Center Program, Special Immigrant Non-Minister Religious Worker Program and Conrad 30 Program for foreign physicians.

We will provide summaries of the other provisions of the Bill, including nonimmigrant visa proposals and immigration enforcement in our subsequent articles. Follow our blog for updates.

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