What Would the Proposed Border Security, Economic Opportunity and Immigration Modernization Act of 2013 Mean for Business-Related Immigration?
By stacey On May 20, 2013 · Add Comment
The Border Security, Economic Opportunity and Immigration Modernization Act of 2013 sets the framework for Congress to address many immigration issues that have been suspended in a gridlock for several years in Washington. The proposed bill, crafted jointly by a group of four Democrats and four Republicans, together known as the Gang of Eight, was crafted to address four major immigration issues. If approved, this Act would: (i) tighten border controls, (ii) allow greater numbers of workers to immigrate legally, (iii) require employers to verify that all workers have legal status, and (iv) create an opportunity for those who are in the U.S. illegally to gain citizenship by following a detailed legal process.
The U.S. is currently in its fourth and largest immigration wave. This wave began in 1965 reflecting the end of immigration limits based on nationality. According to Nancy Benac of the Associated Press in her April 8, 2013, article on the proposed act, the foreign-born population now accounts for approximately 1 in 8 U.S. residents, or approximately 13% of the population. Ms. Benac also states that out of the record 40.4 million immigrants who live in the United States, more than 18 million are naturalized citizens, 11 million are legal permanent or temporary residents, and more than 11 million are in the country without legal permission. (AP article published at http://www.huffingtonpost.com/news/gang-of-eight)
Under present laws, the U.S. permits the granting of a significantly larger proportion of permanent green cards to family members of citizens and current permanent residents than to foreigners with job or other prospects here. About two-thirds of permanent legal immigration to the U.S. is family-based, compared to about the 15% that is employment based. Many members of Congress are interested in boosting employment-based immigration to help the U.S. economy, and to help the U.S. to compete more effectively with other countries around the world by attracting talent to the domestic workplace.
Business owners, entrepreneurs and business lobbying organizations are keenly interested in Congress changing the immigration system to allow the U.S. to attract foreign-born workers with various skill sets. Advocates also wish for workers who have legally worked in the U.S. for an extended period of time to qualify for permanent resident status with fewer obstacles. Despite guarded opposition by labor unions, language in the 2013 bill addresses these issues.
How Will the Bill Affect Business-Related Immigration?
The bill proposes a migration to a more merit-based immigration system by eliminating certain categories of family preferences that promote chain migration, while wholly eliminating the diversity visa lottery. The bill would prevent citizens from bringing in siblings while allowing citizens to sponsor married sons and daughters only if those children are under the age of 31. These changes set the stage for more business-based visas.
The bill would raise the cap on visas for highly-skilled workers seeking H1-B visa status from 65,000 to 110,000, which would be a huge coup and certainly appreciated by the immigration bar – few of us were immune to the frenetic rush to file before the April 1 deadline, and even then far too many legitimate prospective beneficiaries simply missed the boat due to the unreasonable limitations in this critical area.
The bill also proposes to increase the current cap for H-1B STEM graduates with advanced degrees from 20,000 to 25,000. STEM graduates possess degrees based around the natural sciences.
All of these proposed changes to the H-1B visa will allow students who have gone to universities in the U.S. to study and receive advanced degrees to stay in this country to work, and the U.S. will lose less of this pool of talent to foreign competitors. All of these proposed changes are expected to produce positive economic results.
Additionally, the bill creates a start-up visa for foreign entrepreneurs. Under the INVEST program, two new types of visas, one for non-immigrant visas and the other for immigrant visas, have been proposed for entrepreneurs as detailed below:
(1) The non-immigrant INVEST visa is a renewable 3-year visa for investors who can show at least $100,000 in investment in his or her business from angel investors and/or other qualified investors over the past 3 years, and whose business has created no fewer than 3 jobs while generating at least $250,000 in annual revenues in the U.S. for the two years immediately prior to filing.
(2) The INVEST immigrant visa would be an entrepreneurial green card, the number of which would be capped at 10,000 per year. The INVEST immigrant visa would require that the applicant must:
Have significant ownership in a U.S. business (need not be majority interest);
Be employed as a senior executive in the U.S. business;
Have had a significant role in the founding/initial stages of the business;
Have resided for at least 2 years in the U.S. in lawful status;
Have in the 3 years prior to filing a significant ownership in a U.S. business that has created at least 5 jobs and which business must have received at least $500,000 in venture capital or other qualified investments; or
Have in the 3 years prior to filing a significant ownership in a U.S. business that has created at least 5 jobs, and the business has generated at least $750,000 in annual revenue for the 2 years immediately prior to filing.
Finally, the bill also proposes a guest worker visa program. This is among the more controversial aspects of the Gang of Eight bill and is known as “W visas.” This program would issue guest worker visas for low-skilled workers, defined in the bill as those whose jobs don’t require a bachelor’s degree.
Guest workers would serve three-year stints, renewable indefinitely, and would be allowed to bring their families with them. The program sets a first-year cap of 20,000 for the program, but the agency running it would be allowed to increase that to as high as 200,000 visas per year. This program could create a potentially huge source of future migration to the U.S., and raises the question of whether or not these foreign workers will be eligible for permanent residence or citizenship in later years.
Much of the proposed legislation in the Border Security, Economic Opportunity and Immigration Modernization Act of 2013 is just an outline and framework that which the full Congress can refine and eventually act. Amendments and additional provisions will no doubt be included in any final version of the bill that is enacted by both houses. Congress has vowed to give this bill a long period of consideration and multiple hearings for comments and testimony. It will undoubtedly be many months before the final version of the bill is drafted and passed in any form. It is hoped that this detailed level of scrutiny will allow for a comprehensive and effective new immigration law that will have a positive effect on business and on the economy.