May 14, 2005

SWEEPING IMMIGRATION REFORM LEGISLATION INTRODUCED IN THE US SENATE AND HOUSE OF REPRESENTATIVES

The Immigration Reform Bill introduced on May 12, entitled "The Secure America and Orderly Immigration Act of 2005," was submitted by Senators Kennedy (D-MA) and McCain (R-AZ). A companion bill (H.R. 2330) was introduced in the House of Representatives.

The most critical components of the bill are the creation of two new nonimmigrant visa categories, the H-5A and H-5B visas, that include a "guest worker program."

H-5A Visa

The H-5A visa will be for foreign workers who are seeking to work in the United States to fill non-professional jobs, for which no qualified U.S. workers are available, and who may not otherwise qualify for other existing nonimmigrant visas. A fee of $500 in addition to regular filing fees will be required, and the initial cap would be 400,000, but would be subject to change based on US economic trends in the future.

The H-5A visa recipient would have portability, which would allow a holder in the US to change employers. If an H-5A worker loses his/her job, he/she would have 45 days within which to find a new one, or also lose the H-5A status. Furthermore, the H-5A worker would be eligible for permanent resident status via filing and approval of a labor certification application. However, a labor certification would not be required if the subject worker had maintained H-5A status in the US for a combined total of four years. In this case, the employee would merely need to file the immigrant petition and/or adjustment of status application without an employer's sponsorship.

H-5B Visa

The H-5B Visa would provide legalization to certain out of status and undocumented workers. Any alien seeking coverage thereunder would have to have been present and employed in the US on May 12, 2005, and demonstrate that he/she had been and continued to be present and employed in the US thereafter. Aliens filing thereunder would also be required to pay a $1,000 fine.

As evidence of continuous employment, records kept by the employer could be submitted, and such employer would be shielded from any tax or other criminal liabilities related to the production of those documents in support of a visa application. H-5B applicants, as well as their spouses and children, would be able to obtain work and travel authorizations while applications were in process. Each H-5B and derivative beneficiary would be eligible for a six year term, and would be allowed to adjust status to that of permanent resident if certain conditions were met such as paying of back taxes that he/she owed during the period of illegal employment.

Increase in Employment Based Cap and Exemptions to the Cap in Family Based Filings

The legislation proposes to exempt from the 480,000 family based cap, applications by immediate relatives of US Citizens. Furthermore, the limit on employment based filings would be increased from 140,000 to 290,000 worldwide. Any unused employment based visas from FY2001 forward and into the future, would be added to a new EB-5 category entitled "other workers."

The legislation also proposes to increase per country quotas and/or otherwise adjust EB categories in the following manner:

EB-1 (priority workers) and EB-2 (exceptional ability or advanced degree). The annual quota would increase from 40,000 to 58,000

EB-3 category would be limited to skilled and professional workers (other workers will be placed in the new EB-5 category). The annual quota would increase from 40,000 to 101,500.

EB-4 category would be reclassified to include immigrant investors. The annual quota would increase from 10,000 to 14,500.

EB-5 category will be reclassified as stated above to other workers, and the quota will be increased from 5,000 to 87,000. Religious workers may be included in this category and/or under the Special Immigrants category, which will contain 10,000 immigrant visas per year beyond the worldwide cap.

We will keep you apprised of this sweeping reform as it makes its way through the Congress.

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