Category Archives: Immigration Reform

Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants


On January 15, 2016, the Department of Homeland Security published a final rule to improve the opportunities for highly skilled workers in the nonimmigrant specialty occupation  classifications from Chile, Singapore (H-1B1), and Australia (E-3); the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers; and nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1). This is yet another step taken by DHS in response to President Obama’s Executive Actions of November 2014, which are aimed at modernizing and streamlining our legal immigration system. The final rule, Enhancing Opportunities for H-1B1, CW-1, and E-3 Nonimmigrants and EB-1 Immigrants, will be effective on February 16, 2016.

While any improvement to the U.S. immigration system is welcomed, especially as it relates to employment-based visas, the “enhancements” provided under this new rule primarily restore these more recent nonimmigrant classifications to the status quo of other employment-based nonimmigrant classifications. For instance, the 240 Day Rule, which affords other employment-based nonimmigrants to continue working for the same employer for 240 days beyond the validity of an I-94 as long as the extension petition was timely filed, did not extend to H-1B1, E-3, and CW-1 classifications merely because they came into existence after the rule was enacted.

Similarly, regulations permitting extensions of stay and changes of status were enacted prior to the creation of the H-1B1, and E-3, so they were not legally permitted to file for these actions with USCIS despite form instructions permitting such filings. Finally, the rule will allow H-1B1 and E-3 nonimmigrants to accept employment with a specific employer incident to status, although they are already so authorized by statute. In plain English, DHS finally got around to updating the Code of Federal Regulations to include H-1B1, E-3, and CW-1 nonimmigrant classifications. These classifications were established in 2003, 2005, and 2009, respectively. I guess it’s better late than never….

Finally, the rule provides greater flexibility for EB-1 outstanding professors and researchers by modifying the regulations describing permissible initial evidence. Now, comparable evidence, such as important patents or prestigious peer-reviewed funding grants, may be submitted to demonstrate that the beneficiary is recognized internationally as outstanding in their academic areas. Furthermore, this evidence may be submitted instead of or in supplement to the currently accepted list of evidence codified in the regulations. The intent is to remove unnecessary obstacles for these highly skilled professors and researches to seek admission to the US.

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Take Action to Reinstate the 09/09/15 October 2015 Visa Bulletin


Use AILA’s Form to write your state legislators

Sign White House Petition: Restore Original October Visa Bulletin

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Top Five Most Important Changes of New Visa Bulletin


  • Individuals who are stuck in the employment-based immigrant visa backlogs can start their visa paperwork or apply for adjustment of status before their priority date becomes current and an immigrant visa becomes immediately available;
  • There are two important dates listed on the monthly Visa Bulletin: the “Filing Date,” which determines when individuals can submit their permanent residence applications, and the “Final Action” date, which determines when the Department of State or USCIS can make a decision on the applications.
  • Individuals stuck in the employment-based backlogs will have greater flexibility and job mobility because they will no longer be tied to the employer who filed for the I-140 Petition for Alien Worker;
  • The new system will provide the Department of State and USCIS with better data for determining overall visa demand, which should allow the State Department to make better Visa Bulletin predictions regarding future backlog movement;
  • The employment-based categories most impacted by the October Visa Bulletin are:
    • EB-2 India: Final Action Date = 5/1/05; Filing Date = 7/1/11
    • EB-3 Philippines: Final Action Date = 1/1/07; Filing Date = 1/1/15
    • EB-2 China: Final Action Date = 1/1/12; Filing Date = 5/1/14
    • EB-3 China: Final Action Date = 10/15/11; Filing Date = 10/1/13

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Modernizing & Streamlining Our Legal Immigration System For The 21ST Century


On July 15, 2015, The White House released a report, Modernizing & Streamlining Our Legal Immigration System for the 21st Century, which details the combined efforts of 12 Federal Agencies to advance President Barack Obama’s Executive Actions of November 20, 2014. The specific items identified below apply to efforts at modernizing the immigration systems for high-skilled workers, entrepreneurs, and students. According to the Council of Economic Advisor’s Report, the President’s executive actions, if fully implemented, would boost our nation’s gross domestic product (GDP) by between $100 billion and $250 billion, expand the size of the American labor force, raise average annual wages for U.S.-born workers by 0.4 percent, over the next 10 years, and cut the Federal deficit by $30 billion in 2024. Highlights of the entire report are as follows:

Modernizing Our System for Efficiency and Accessibility:

Currently, the immigration application and adjudication process is mostly paper-based, requiring documents to change hands and locations among various federal actors at least six times for some petitions. These recommendations will make our system more accessible to applicants, bring our technology into the 21st century, and enhance data transparency:

  • Create a cross-agency digital services team to support the implementation of the modernized immigrant visa project, which is aimed at improving the visa applicant experience and increasing efficiencies in the adjudication process through digitization;
  • Redesign systems with an eye towards a human perspective and accessibility for users;
  • Convene a communications task force to create clearer, plain-language instructions;
  • Adopt best practices for software development and modernize technology stacks to improve content management; and
  • Create an interagency task force to enhance data collection and publication in order to increase transparency.

Streamlining Our Legal Immigration System:

Our legal immigration system provides numerous options for individuals to obtain status, temporary or permanent, in the United States, as governed by existing law. Many of these programs are backlogged as a result of statutory caps, which can only be addressed through legislation. However, the following recommendations serve to improve existing programs, making our system more efficient and effective for the applicant as well as our agencies and their teams:

  • Improve the issuance of employment-based immigrant visa numbers;
  • Increase efficiency for international arrivals through enhanced technology and an increased focus on high-risk travelers;
  • Implement the “Known Employer Program,” which will allow employers meeting strict criteria to pre-establish certain requirements as petitioners, by creating a prototype, publishing a report upon completion of the pilot, and creating an implementation plan for a permanent program;
  • Improve integrity and increase the minimum investment for immigrant investor visas; and
  • Enhance opportunities and provide greater clarity for certain nonimmigrants, including the circumstances under which U.S. employers may directly sponsor students on F-1 visas for lawful permanent residence.

Permanent Immigration Reform

While the Obama Administration continues to believe that Congress must pass comprehensive, commonsense immigration reform in order to overhaul our immigration laws and fully fix our broken immigration system, President Obama has taken action within his authority to fix what he can within the broken immigration system. These commonsense measures, announced on November 20, 2014, help secure the border, set smart enforcement priorities, and streamline processes so that high-skilled immigrants, entrepreneurs, students, and families can contribute as fully as possible to our economy. America needs a 21st century immigration system that supports a growing economy and lives up to our heritage as a nation of laws and a nation of immigrants.

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Bills to Watch: A Legislative Rundown


Given the close proximity to the Presidential election and the inability for Congress to function as it was intended, at least for the last 7 years, my optimism for passage of meaningful immigration reform in the next two years wanes. After all, a bill must be passed by both the House and Senate in identical form and then be signed by the President to become law. With half of Congress running for President, it is difficult to imagine these politicians throwing politics aside to serve the American people. That, I believe, would be too much to ask. Yet, there are several bills that have been introduced this year that give me hope for the future of U.S. immigration.

H.R. 213: Fairness for High-Skilled Immigrants Act of 2015

Introduced: Jan 8, 2015

Status: Referred to House Committee on the Judiciary: Subcommittee on Immigration and Border Security

Sponsors: Rep Jason Chaffetz (R-UT3) with cosponsors Rep Raul Labrador (R-ID1) and Rep Zoe Lofgren (D-CA19)

Co-Sponsors: 25 Republicans & 14 Democrats

Summary: Fairness for High-Skilled Immigrants Act would eliminate country-based restrictions on employment visas and to reduce country-based restrictions on family visas. Currently, the Immigration and Nationality Act limits the combined total of work and family visas to 7% of a country’s total population. If passed, H.R. 213 would remove all restrictions on the number of visas issued to a particular country in a given year. Limits on the number of visas issued would remain intact.

S. 153: I-Squared Act of 2015

Introduced: Jan 13, 2015

Status: Referred to Senate Committee on the Judiciary

Sponsors: Senator Orin Hatch (R-UT)

Co-Sponsors: 8 Republicans, 4 Democrats, 1 Independent

Summary: Immigration Innovation Act authorizes additional visas for key employment-based categories. Specifically it would create a sliding scale system for H-1Bs that would allow USCIS to issue up to 195,000 visas incrementally between April 1 and December 31. It would also start with 115,000 visas as a baseline. I-Squared would also increase the number of employment-based green cards from 140,000 to 235,000, it would eliminate per country limits, and it would reallocate unused visas going back to 1993.

S. 98: STEM Jobs Act of 2015

Introduced: Jan 7, 2015

Status: Referred to Senate Committee on the Judiciary

Sponsors: Senator David Vitter (R-LA)

Co-Sponsors: 0

Summary: STEM Jobs Act of 2015 provides 55,000 visas available for immigrants who have completed a doctorate degree in a STEM field from a U.S. institution of higher learning. All unused visas would then become available for immigrants who have completed a master’s degree in a STEM field from a U.S. institution of higher learning.

H.R. 2181: STAPLE Act

Introduced: April 30, 2015

Status: Referred to House Committee on the Judiciary: Subcommittee on Immigration and Border Security

Sponsor: Rep Erik Paulsen (R-MN3)

Co-Sponsors: 2 Democrats & 1 Republican

Summary: STAPLE Act would authorize certain aliens who have earned a Ph.D. degree from a U.S. institution of higher education in a STEM field to be admitted for permanent residence and to be exempted from the numerical limitations on H-1B nonimmigrants.

H.R. 616: American Entrepreneurship and Investment Act of 2015

Introduced: January 28, 2015

Status: Referred to House Committee on the Judiciary: Subcommittee on Immigration and Border Security

Sponsor: Rep Jared Polis (D-CO2)

Co-Sponsors: 12 Democrats & 9 Republicans

Summary: American Entrepreneurship and Investment Act would provide reforms to the EB-5 immigrant investor program. It would increase the targeted employment area set-aside and to defer to state designations. It would also establish preapproval procedures for commercial enterprises before an alien files a petition for classification by reason of investment, except for specified criminal or civil activities. Additionally it would provide certain immigration provisions and exemptions for the dependents of investors.

H.R. 1834: E-2 Visa Improvement Act of 2015

Introduced: April 16, 2015

Status: Referred to House Committee on the Judiciary: Subcommittee on Immigration and Border Security

Sponsor: Rep David Jolly (R-FL13)

Co-Sponsors: 6 Republicans & 1 Democrat

Summary: E-2 Visa Improvement Act would permit certain E-2 nonimmigrant investors to adjust status to lawful permanent resident status.

S. 1501: American Job Creation and Investment Promotion Reform Act of 2015

Introduced: June 3, 2015

Status: Referred to Senate Committee on the Judiciary

Sponsor: Senator Patrick Leahy (D-VT)

Co-Sponsors: 1 Republican

Summary: American Job Creation and Investment Promotion Reform Act would promote and reform foreign capital investment and job creation in American communities through the EB-5 Regional Center investment program.

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Regulatory Agenda: Employment-Based Immigration Items Added


Two employment-based immigration items have been added to the regulatory agenda. By adding specific items to the Regulatory Agenda, the various executive agencies, including the Department of Homeland Security and the Department of Labor, signal that considerations for rulemaking, such as cost-benefit analysis, are being undertaken. These formalities are required for any executive agency to create new directives that become permanent policy of the agency. The two items added to the agenda follow.

Employment-Based Immigration Modernization

Under RIN: 1615-AC05, the Department of Homeland Security (DHS)  “is proposing to modernize the immigrant visa system by amending its regulations governing the adjustment of status process and employment-based immigration. Through this rule, DHS proposes to allow certain approved Immigrant Petition for Alien Worker (Form I-140) beneficiaries to obtain work authorization, clarify the meaning of portable work authorization, and remove unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays.”

While this rule will likely relate to the recently announced work authorization for certain H-4 spouses, it does not limit authorization to this class of nonimmigrants. This could mean that DHS is considering the extension of work authorization to the H-4 children of H-1B beneficiaries of an approved I-140. The proposed rule change would also clarify the portability provisions, presumably of H-1B holders who have an approved I-140. It could also deal with portability of EAD beneficiaries, but due to the few restrictions placed on these nonimmigrant workers, the likely rule clarification will be on the former. Finally and probably most relevant to the thousands of approved I-140 beneficiaries, the proposed rule will remove restrictions on career mobility and advancement. For all of these reasons, this is definitely an agenda item to follow.

Modernizing the Permanent Labor Certification Program (PERM)

Under RIN: 1205-AB75, the Department of Labor (DoL) proposes to modernize the outdated PERM program. The DoL “has not comprehensively examined and modified the permanent labor certification requirements and process since 2004. Over the last ten years, much has changed in our country’s economy, affecting employers’ demand for workers and the availability of a qualified domestic labor force. Advances in technology and information dissemination have dramatically altered common industry recruitment practices, and the Department has received ongoing feedback that the existing regulatory requirements governing the PERM process frequently do not align with worker or industry needs and practices. Therefore, the Department is engaging in rulemaking that will consider options to modernize the PERM program to be more responsive to changes in the national workforce, to further align the program design with the objectives of the U.S. immigration system and needs of workers and employers, and to enhance the integrity of the labor certification process.”

Modernizing the PERM system is an amorphous prospect, which is why the proposed rule change is vague. To modernized PERM, the DoL will require significant analytical debate and scholarly input from those who practice in this sector. Some major downfalls of the system as it exists now are the time it takes for the DoL to certify a PERM application, especially if it goes to audit, and the antiquated forms of advertisement that are required of employers. In terms of the 6+ months it takes to receive PERM certification, employers simply do not operate under such timeframes when hiring employees. In order to retain top talent, an employer must be nimble and react to the applicants in front of them. With regard to advertising, newspapers are a thing of the past. But to satisfy PERM requirements, companies waste valuable recruitment resource dollars on ad space without any inkling of hope that the ad will yield even one candidate. Yet when companies use dynamic recruitment strategies like social media, the DoL gives no credit in the PERM process. The simple reason is that the world in 2015 is different than the world in 2004. Ideally the DoL will realize that the world will be different in 2016 and 2017 too, so the new system should be prepared to adapt with time instead of getting lost in it.

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Bills to Watch: Fairness for High-Skilled Immigrants Act of 2015 (H.R. 213)


Referred to Committee on January 8, 2015, H.R. 213: Fairness for High-Skilled Immigrants Act of 2015 is sponsored by Rep. Jason Chaffetz (R-UT3) with cosponsors Reps Raul Labrador (R-ID1) and Zoe Lofgran (D-CA19). This Bill would update the Immigration and Nationality Act to eliminate country-based restrictions on employment visas and to reduce country-based restrictions on family visas. The INA currently limits the combined total of work and family visas for immigrants from any country at 7% of the country’s population. H.R. 213 would amend this to increase the limit to 15% and make the limit apply only to family-sponsored immigrants. Employment-based visa sponsorship would have no per country limits.

While this Bill could result in an increase in the number of immigrants from a particular country in a given year, it would not increase the overall number of visas issued within a fiscal year. In essence, the system would work on a first-come first-served visa system, instead of requiring individuals from certain countries to wait years while others only wait months for a green card. Representative Chaffetz stated that “this bill is an important step toward creating a more equitable and less arbitrary immigration system.  Our current practice of capping visas at an arbitrary 7% per country ultimately favors people from some countries while penalizing people from others.   Those from countries with larger populations or close proximity to the United States ultimately wait years longer to receive a visa than those from small countries.  While this bill does not fix all of our legal immigration problems, it addresses an important problem that has created a backlog of qualified workers.”

It is important to note that current law prohibits US employers from hiring foreign workers to fill these jobs unless there are not sufficient US workers who are able, willing, qualified, and available. Due to the prevailing wage system established by the Department of Labor, employment of a non-immigrant worker cannot adversely affect the wages and working conditions of similarly employed workers in the US. HR 213 does not change this, but it does encourage high skilled immigrants who were educated in the US to stay and contribute to our economy, rather than taking the skills they learned and aiding our competitor nations. For this reason, the Bill has bi-partisan support.

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Awesome FWD.us Tool to Advocate for Immigration Reform


FWD.us Push 4 Reform

Find out where your State Congress men and women stand on immigration reform. Using this interactive tool, you can easily find where all of your state’s senators and representatives stand on immigration reform. If you click on any individual senator or representative, the tool will provide specific statements or voting records to show what forms the basis of the stance. For example, I picked Dan Coats and Joe Donnelly, the two Senator from Indiana, to learn where they stood on immigration. After reading about their public statements and voting records, I was able to take public action by writing a quick email to Dan Coats about the damaging effects our outdated business immigration system has on our economy and job market. I was also able to send a Tweet to Joe Donnelly thanking him for supporting comprehensive immigration reform. Never has it been so easy to take part in the political process, outside of voting for the candidates that champion your issues.

About FWD.us

FWD.us was founded in April 2013 by Mark Zuckerberg, Bill Gates, Reid Hoffman and other leaders in the technology and business communities. We are a bipartisan organization that harnesses the best of advocacy campaigns and the technology sector to tackle tough political problems and issues critical to the United States knowledge economy. FWD.us’ mission is to mobilize the tech community to support policies that keep the American Dream achievable in the 21st century.

FWD.us is a full stack advocacy organization with a top-tier rapid response operation, a robust digital organizing team, and thousands of active volunteers in 34 cities and 15 states across the country. We bring together a diverse team of engineers, community organizers, and policy experts. Since our inception, we have used technology to enable over 400,000 different individuals to take meaningful action in support of immigration reform. FWD.us enables individuals to come together to create a potent new political movement and advocate for policy change.

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Congressional Hearing: Immigration Reforms Needed to Protect Skilled American Workers


On Tuesday, March 17, 2015, the Senate Judiciary Committee is slated to hear “Immigration Reforms Needed to Protect Skilled American Workers.” One potential bills that could be discussed during the committee hearing is the I-Squared Act, which puts forth comprehensive changes to the business immigration system. Some measures include increasing the number of H-1B visas and switching to an incrementally increasing scale based on the number of petitions received. This could effectively do away with the H-1B lottery system that leaves so many U.S. companies without the valuable employees necessary to grow with the demands of the market. It could also greatly reduce or eliminate the green card bottleneck experienced by some countries by increasing the number of green cards available and by reissuing unused green cards since 1993. These two measures alone could have a dramatic effect on the U.S. economy and its businesses ability to compete in a global marketplace. The hearing is set for 10 a.m. EST.

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Immigration Innovation Act of 2015 (I-Squared): An Outline


Immigration Innovation Act of 2015

A Bill to amend the Immigration and Nationality Act to authorize additional visas for well-educated aliens to live and work in the United States, and for other purposes.

Short Title: “Immigration Innovation Act of 2015” or “I-Squared Act of 2015”

Date Introduced: January 13, 2015

Senate Sponsors: Orin Hatch (R-Utah), Amy Klobuchar (D-Minn.), Marco Rubio (R-Fla.), Chris Coons (D-Del.), Jeff Flake (R-Ariz.) and Richard Blumenthal (D-Conn.)

Employment-Based Nonimmigrant Visas (H-1B)

  • Minimum of 115,000 visa baseline available per year
  • Maximum of 195,000 visa baseline available per year
  • Base line number of visas based on number of petitions filed in prior year
  • Sliding scale of additional visas available per year based on demand
    • Cap reached in first 45 days – 20,000 additional visas issued
    • Cap reached between 45 and 60 days – 15,000 additional visas issued
    • Cap reached between 60 and 90 days – 10,000 additional visas issued
    • Cap reached between 90 and 275 days – 5,000 additional visas issued

What this means in plain English is the visa lottery will no longer be required! However, it is not yet clear how the petitions will be processed, whether on a first-come first-served basis or on a random selection basis.

By way of example, say more than 115,000 H-1B Petitions are filed between April 1, 2016 and May 16, 2016, the USCIS will begin processing an additional 20,000 petitions. If these 20,000 additional visas are used before May 31, 2016, the USCIS will begin processing and additional 15,000 visa petitions, and so on.

Employment Authorization for Dependents of H-1Bs

  • Spouses of H-1B and L Nonimmigrants authorized to work

H-1B Worker Mobility Impediments Removed

  • H-1B or L visa filed by the same employer and alien worker automatically approved unless a material error or change in circumstances occurs
  • H-1B aliens whose employment is terminated (voluntarily or involuntarily) before the expiration of the period of authorized admission have 60 days to secure new employment with another employer

F1 Student Visas

  • F1 Students permitted to file a green card petition without leaving the U.S. or what is know as dual intent

Employment-Based Immigrant Visas (Green Cards)

  • Effective date is October 1, 2015 for fiscal year 2016
  • Allocation of all unused green card numbers from 1992 – 2013
  • Increase green card numbers available from 140,000 to 226,000
  • Requirement to use all green card numbers available each year
  • Numerical limit per year not applicable to aliens with a master’s degree or higher in a STEM degree
  • Numerical limit per year not applicable to spouses and dependents of green card beneficiaries

STEM Education Funding

  • Increase in fees for employment-based petitions to incentivize U.S. born students to pursue STEM degrees

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