Immigration Reform 2013: Understanding the “I-Squared” Act

We’ve previously told you about the broad proposals for immigration reform put forward by President Obama and the bipartisan group of Senators known as the “Gang of Eight.” Today, we’ll take you through an actual piece of legislation currently pending in Congress: the Immigration Innovation (or “I-Squared”) Act of 2013.

Unlike the frameworks put forth by the President and the Gang of Eight, which address numerous aspects of the immigration system, the I-Squared Act is narrowly focused on employment visas for professional and other highly skilled workers. However, as immigration lawyer Greg Siskind points out, the I-Squared Act is what’s known as a “marker bill”—meaning it was designed not to be passed on its own, but to serve as a model for similar provisions to be included in the eventual comprehensive reform bills.

Creation of a “Floating” Cap on H-1Bs

The biggest proposal in the I-Squared Act involves the H-1B program, which allows professionals and similarly skilled employees to work in their fields of specialty for up to six years, and which commonly serves as a bridge for university graduates who hope to obtain employment-based green cards. Due to the program’s popularity, the annual allotment of 65,000 slots is routinely filled just weeks (if not days) after USCIS begins accepting applications—leaving employers, and especially technology start-ups, unable to tap much of the pool of foreign labor on which they rely.

To remedy this problem, the I-Squared Act would allow the annual H-1B cap to “float” between 115,000 and 300,000 depending on market conditions and existing demand. For example, if the cap was reached within 45 days, the government would automatically make an additional 20,000 slots available. By contrast, if the number of approved H-1B petitions in a given year was more than 20,000 below the original cap, the government would reduce the base figure by 20,000 for the subsequent fiscal year.

Importantly, the bill would also exempt applicants with advanced degrees from the cap altogether; facilitate the ability of sponsoring employers and employees to extend H-1B status;  and for the first time allow the spouses of H-1B workers to themselves obtain employment authorization documents. Finally, to fund education in STEM (science, technology, math, and engineering) fields, the bill would raise the fees that H-1B employers must pay—from $750 to $1,250 for those with fewer than 25 employees, and from $1,500 to $2,500 for those with 25 or more employees.

Reforms to the Employment-Based Visa System

For many years, the employment-based green card system has been plagued by two opposing different problems. The demand for some types of green cards far exceeds the supply, creating lengthy backlogs and frustrated applicants. Meanwhile, the supply for other types of green cards far exceeds the demand, resulting in thousands of slots for permanent residency going unused each year.

To fix the first problem, the I-Squared Act would eliminate the per-country quotas altogether for employment-based green cards. Under current law, the government may not issue more than 7% of the green cards in any particular category to residents of any particular country. As a result, noncitizens from countries with many applicants, such as India and China, face much longer waits to obtain permanent residency than noncitizens from countries with few applicants. Indeed, due to the per-country quota, the government is only now processing EB-3 applications for Indian beneficiaries filed in November 2002. By eliminating the per-country quotas for employment-based green cards, the I-Squared Act would result in their being issued on a first-come, first-served basis. (What a novel idea!)

To address the second problem, the I-Squared Act would “recapture” all unclaimed employment-based green cards since 1992, making them available to current applicants and rolling them over to future years as necessary. It would also increase the annual percentage of green cards issued for the most popular categories (EB-2 and EB-3) from 28.6% to 42.9%. In combination, these proposals would do much to reduce (if not eliminate) the extensive waiting periods that currently face applicants for the most popular employment-based green cards.

In fact, by expanding the number of EB-2 visas available each year, the I-Squared Act would accomplish many of the same objectives as the STEM Jobs Act pushed during the lame duck by House Republicans. (Green cards in the EB-2 category are available to noncitizens with advanced professional degrees or who otherwise possess “extraordinary ability.”) Unlike the STEM Jobs Act, however, the I-Squared Act would not eliminate any existing green cards as an artificial attempt to “offset” the increase.

Authorization of “Immigrant Intent” for Student Visas

One of the biggest ironies (if not tragedies) of immigration law is that to obtain a temporary visa to enter in the United States, most noncitizens must affirmatively prove that they have no intention of permanently settling in the country. In other words, unless they can demonstrate that they intend to return home, most nonimmigrant visa applicants are forbidden from entering the country in the first place. For some types of visitors—such as tourists—this requirement makes sense. But for others—especially those who are highly skilled—it is entirely self-defeating. After all, how can we expect to attract talented foreigners to work here if we say up front that we don’t want them to stay?

Under current immigration law, applicants for only three types of temporary visas are permitted to possess “immigrant intent,” i.e., a desire to remain in the United States indefinitely: professional workers (H-1Bs), intra-company transferees (L-1s), and certain immediate relatives of permanent residents who are awaiting their own green cards (Vs).

The I-Squared Act would for the first time authorize visiting students (Fs) to have “immigrant intent,” meaning in practical terms that their ability to study in the United States would not depend on their having a foreign residence that they have no intent of abandoning. This change is not only long overdue, but crucial to attracting the very type of student to whose diploma we hope to ultimately staple a green card.

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