Immigration Reform – Changes to Employment Based Immigration

Continuing our analysis of the Senate proposal for comprehensive immigration reform, we now examine the proposed changes to the employment-based immigration system.

One the more significant changes being proposed is the elimination of the per-country quota for employment-based immigration.  This would mean that all aliens, regardless of what country they are born in, will be placed in the same visa pool.  This would vastly decrease, or even eliminate many of the visa wait times for high visa-use countries such as China or India.  In addition to eliminating the per-country quota, the proposed law also contains provisions that exempt certain categories from the annual numerical limit on employment-based visas altogether.

First, aliens with extraordinary ability, outstanding professors and researchers, and multinational executives and managers are all exempt from the worldwide numerical visa limitations.  The proposed law would also exempt doctorate degree holders in any field from numerical limitations.  Whether the PhD was earned from a United States institution of higher education, or if the degree is a foreign equivalent of a PhD, the alien will be exempt from annual numeric visa limitations.

Additionally, those who hold an advanced degree (master’s degree or higher) in a STEM’s field are also exempt from the annual numeric limit on employment-based immigrants, so long as the alien: earned the degree from a US institution of higher education, has an offer of employment from a US employer in a related field, and earned the qualifying degree within the five-year period immediately preceding the filing of the immigrant petition.

For aliens those who do not have an advanced degree but possess a degree in a STEM’s field, the proposed law will exempt such aliens from the requirement of obtaining a labor certification.  In other words, if one holds a bachelor degree in a STEM’s field, it will be possible to receive an approval for an immigrant petition without the need for a labor certification.

In addition to the sweeping modifications to the existing employment-based categories discussed above, the proposed law also adds a new 6th employment-based category (“EB-6”) called the “Invest Immigrant Visa”.  Each year, 10,000 visas will be granted to qualified entrepreneurs who:

  1. Possess a significant ownership interest (but does not need to be a majority interest) in a United States business;
  1. Is employed as a senior executive in the business, and;
  1. Has had a significant role in the founding or early-stage growth of the enterprise.

Additional provisions require that the alien must have resided in the United States for at least two years in a lawful status in the three years prior to filing the petition. The entrepreneurial business must also meet certain qualifications for the alien to qualify for an EB-6.  Under the proposed law, the business must have either:

  1. Created at least 5 jobs and has received $500,000 in venture capital funding or other investments, or
  1. Created at least 5 jobs and has generated $750,000 in annual revenues within the United States in the two years prior to filing.

There are also less stringent requirements for immigrant investors who possess an advanced STEM’s degree.  For advanced STEM’s degree holders (master’s or above) the business must either:

  1. Create 4 jobs and receive $500,000 in venture capital funding or other investments, or
  1. Create 3 jobs and generate $500,000 in annual revenues within the United States two years prior to filing

Overall, we applaud the proposed changes to the employment-based immigration system.  It values educated, well qualified workers, by exempting such workers from annual numeric limitations, and even creates a new alien entrepreneur category for those who wish to start a new businesses in the United States.  Perhaps the most welcome change is the elimination of the archaic per-country quota system that has needlessly delayed highly qualified Chinese and Indian immigrants from entering the United States.  We hope that these provisions are adopted in the final legislation unchanged from their current form.

In our next article, we will explore additional provisions in the proposed legislation including changes to family-based immigration.


For questions or comments regarding this article please feel free to contact attorney Fok at: jfok@jclawoffice.com

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