Today Senator Bob Menendez introduced the huge Immigration reform bill called as “US Citizenship Act of 2021”. It is the official draft text of the bill released for public review. It is a huge 353-page Bill. The Official bill has a lot of provisions on various aspects of immigration like H1B, Green Cards, DACA, TPS, etc. In this article, we will focus on the proposed changes to H1B, F1, H4, L1 and Employment based Green Card aspects.
Background of Biden Immigration Bill
The huge immigration reform Bill called as “US Citizenship Act of 2021” is one of the key Biden Administration priorities and they released the high-level details of this bill as a fact sheet on Whitehouse earlier in January. While that fact sheet gave high level areas, it was not the actual Bill text from Congress. Today the official Bill text is released to the public for review. It is a mammoth 353-page bill and there are two versions released one for Senate and one for House. They are yet to be given a number as of now. For more background, you can read Summary of White House version of US Citizenship Act of 2021
Note: As it is a huge bill with 353 pages, we are just giving summary on a very high level. We are still reviewing the Official Bill in more detail and will update this article with changes or corrections as needed. Check back article in couple of days for final version of analysis.
We have divided the article into sections for easy review and grouped all changes relevant for that category in that section.
Employment Based Green Cards (EB1, EB2, EB3) Changes
Below are the various changes proposed under the Employment based Green Cards area.
- Increase Employment Based Green Cards : Increase the annual limit of Employment based green cards limit from 140,000 per year to 170,000 per year.
- Removal of per country visa caps: The official bill text draft has language to remove the Employment based per country caps. This was the key change planned with HR 1044 and S386 Bills that were in Congress last couple of years.
- Effective Date: This provision will be effective from Fiscal Year 2022. USCIS Fiscal year 2022 starts from October 1st, 2021.
- Changes in allocation Percentages: The allocation percentages from the total proposed 170,000 annual limit of Employment based Green cards is planned to be modified as below
- EB1 Category: Allocation changes from 28.6% to 23.55%. This gives 40,035 green cards for this category. It is not different from current 40,040 for this category.
- EB2 Category – Similar to EB1, allocation changes from 28.6% to 23.55%. This gives 40,035 green cards for this category. It is not different from current 40,040 for this category.
- EB3 Category – Allocation changes from 28.6% to 41.2%. This increases the green cards issued per year from 40,040 to 70,040 per year
- Unskilled Limit in EB3 – It is increased from 10,000 limit to 40,000 per year
- EB4 Category – Allocation changes from 7.1% to 5.85%. This gives 9,945 green cards for this category. This is similar to current 9,940 per year.
- EB5 Category– Similar to EB4, allocation changes from 7.1% to 5.85%. This gives 9,945 green cards for this category. This is similar to current 9,940 per year
- Family Members not subject to Employment based Green Card Numbers : The bill has provision (under addressing visa backlog section 3402) that says that family members (spouse and children) not subject to the employment based green card annual numbers. This will be effective 60 days after the effective date of the Bill.
- Labor Market Adjustments – Limit Issuance of Green Cards: There are provisions given to limit issuing of EB2 and EB3 green cards in certain Geographic Areas where there is high unemployment. DHS by working with US Dept of Labor (DOL) can issue a regulation to temporarily limit the issuance of Green Cards in EB2 and EB3 category in certain areas, where is high unemployment levels.
- Regional Economic Development Visa Programs: There are provisions for DHS to setup a pilot program for annual limit of not more than 10,000 Employment based green cards to be issued for regional economic development of cities & counties. All the standard Labor Certification process is applicable for the pilot program, similar to general Employment based green cards. The pilot program may not exceed for over 5 years. There will need to be regulation published for this in consultation with US Dept of Labor.
General Green Cards Provisions to Address Backlogs
- Recapture lost Green Cards numbers: The Bill has provisions to recapture all lost Green Cards numbers between 1992 through 2020. It is estimated by David Bier from Cato Institute that about 225,000 unused Employment Based Green Cards would be recaptured.
- Waiting in Green Card line for over 10 years: If someone with approved immigrant petition is waiting in line for over 10 years, then they are not subject to numerical cap anymore. What is means is that, if applicants had an approved I-140 (immigrant petition) and waiting in line for over 10 years, they can file for adjustment of status even if their priority date is not current. This helps applicants from countries like India, China, Mexico who have been waiting in line for a long time. This provision is applicable to both Family based and employment-based categories.
- Effective Date : This will be effective 60 days after the bill is passed.
H1B Visa Changes
H1B Lottery based on Wages: The draft Bill has provisions that gives authority to DHS to work with DOL and issue regulation to prioritize the order in which H1B Visa applicants are selected based on the Wages offered by employers. This provision adds on the current DHS plan to have H1B Lottery with Wage Levels based Selection, which is delayed until Dec 31, 2021. So, we may see this for H1B Visa 2023 season.
H4 Visa Changes
- Work Authorization for H4 holders : As per the draft bill, the H4 dependents both spouse and child are eligible for EAD and can work in US. This is a huge relief for all H4 holders, if this passes in Congress. As many of you know, there is H4 EAD Lawsuit dragging for years.
- Protecting Age out: The bill has language that tells that H4 children will not age out for issuance of green card. They will consider the age of the child on the day when the immigrant petition (I-140) was filed with USCIS or the date of labor certification filed with US Dept of Labor, if applicable. Basically, the priority date.
F1 Students Changes
- STEM PhDs from US Universities: As per the introduced bill draft text, there are no numerical limits set on the individuals applying for Green Card with a Doctoral (PhD) degree in Science, Technology, Engineering, or Mathematics from accredited US Universities. This is good for all students, who get PhDs, they are not bound by the annual caps established for Employment based Green Cards.
- Dual Intent for F1 Visa Applicants : F1 visa holders need to show non-immigrant intent during visa interview. Basically, at visa interview they need to prove or convince the visa officer that they will come back to home country after studies in US. Now, they have provisions in the Bill that says that they do not have to come back adding dual intent to settle in US. Similar to H1B Visa, they can settle down there and apply for green card. So, visa officers cannot reject visa for immigrant intent. Read What is Non-Immigrant Intent vs Dual Intent US Visa
- Extensions for F1 OPT Status with EAD for Green Card Applicants: There are provisions in the draft bill that say that F1 students on OPT with Green Card process i.e. who have pending Labor Certification with DOL applied before 365 days of expiration of F1 status, or with pending or approved I-140 will be given F1 visa extensions. They will also be given EAD to continue working until they get a decision on their green card application. Essentially, the OPT related EAD will be extended in increments of 1 years until you get green card. This is going to be similar to H1B Extensions done with approved I-140. This is very attractive provision for F1 students, no longer need to try luck for H1B lottery or even H1B.
L1 Visa Holders Changes
- Extensions for L1 Status for Green Card Applicants: Similar to F1 students, there are provisions in the draft bill that say that L1 visa holders with Green Card process i.e., pending Labor Certification with DOL applied before 365 days of expiration of status, or with pending or approved I-140 will be given L1 visa extensions with work authorization (EAD) to continue working until they get a decision on their green card application. We need to see how this will be implemented.
General Changes Proposed in Bill
- They have proposed to change the term from “alien” to “noncitizen” across the board, signifying any person who is not a citizen of United States.
- Increasing Diversity Visa lottery limit from 55,000 to 80,000
- Path to citizenship for Dreamers
- Change the per country limits of Family based immigration from 7% to 20%
- Many other provisions on border security enforcement, provisions for other visa types.
What are Next Steps, Chances of Passing ?
This document draft of Bill released today is the very first step. There is a long way to go. It needs to go through all the 9 Steps for a Bill to Become a Law in US Congress. There are likely going to be a lot of changes to bill text, provisions added, removed. Until it is passed in both House and Senate, we have no guarantee that this will be implemented.
The changes for this Bill to pass as it is with the current clauses is very low. There are many aspects of the larger bill that are in big contention among the Congress members. Many of these provisions may not make it. If you see HR 1044 for per country caps removal for Employment based Green Card, it went from 7 pages to 36 pages after it was introduced in Senate and passed. There were 29 pages of amendments added. Now looking at the size of changes to immigration system, we can expect a lot more amendments. We will keep you posted on all the changes, stay tuned.
What are your thoughts on the Draft Bill Text released today ? Will it pass ? Share your thoughts in comments below.