Proposal to relief the retro

Senate Committee to Consider Immigration Relief Provisions

10/07/2005


New Fees Would Also Be Imposed


As a result of budget reconciliation discussions, the Senate Judiciary Committee has indicated that it will be considering language for inclusion in a budget bill that would increase the availability of green card and H-1B visa numbers and impose new fees. As part of Congress's budget reconciliation process, each committee in the House and the Senate is tasked with raising revenues or cutting spending. The reconciliation process begins with the inclusion in a budget resolution of instructions to each committee to change spending and revenue laws. The green card and H-1B provisions emerged yesterday in the context of budget reconciliation discussions and are scheduled to get a first formal examination by the Senate Judiciary Committee on October 20, 2005.

In a related move, the House Judiciary Committee recently voted in favor of a bill that would impose a $1,500 fee on each L-1 intracompany transferee worker. The arguably more helpful Senate initiative, which would add new green card and H-1B benefits as well as new fees, has been offered as an alternative to the House-backed L-1 fee.

If enacted, the provisions would allow for the recapture of unused green card and H-1B specialty occupation visa numbers from past years, and would permit certain foreign nationals to file applications for adjustment of status to permanent residence, even if subject to visa backlogs. An additional $500 fee would be assessed on employment-based immigrant petitions as well as on H-1B petitions filed for the recaptured pool of numbers. We have been able to obtain a copy of the proposed language and we summarize it in more detail below.

Please note that the final shape and form of the ultimate legislation may be quite different from the proposal described below as provisions are amended, added and subtracted, and House and Senate bills are reconciled.

Recapture of Unused Immigrant Visa Numbers

Currently, the worldwide number of employment-based immigrant visas available during a given fiscal year amounts to approximately 140,000 (although this number can fluctuate in years when unused family-based immigrant visas trickle down into the employment category). The 140,000 figure includes visas issued to principal beneficiaries of I-140 immigrant worker petitions and to their spouses and children.

The proposed language would provide that the worldwide level of employment-based immigrant visas would include the sum of (1) a baseline pool of 140,000 visas; (2) the number of unused family-based immigrant visas from the previous fiscal year; and (3) the number of unused employment-based immigrant visas from all previous fiscal years (excluding visas allocated to "Schedule A" categories) or 90,000, whichever is less.

Spouses and children would no longer be counted against the overall limit, which in itself would free up a substantial number of visas. Finally, all I-140 petitions would be subject to a "supplemental petition fee" of $500, on top of the normal filing fee.

Adjustment of Status

The proposed language would also provide that an individual for whom an I-140 immigrant visa petition with supplemental $500 fee is filed may file an adjustment of status application even if a visa number is not immediately available. The adjustment application can still not be approved until a visa number is available (i.e., until the beneficiary's priority date is current), but the filing of an adjustment application presumably entitles the applicant to the ancillary benefits of an adjustment filing, including eligibility for an employment authorization document (EAD) and an advance parole travel document. Beneficiaries of I-140 petitions which are pending on the date the law is enacted may, upon the payment of the supplemental petition fee, take advantage of the opportunity to file an adjustment application even if their priority dates are not yet current. However, the bill would appear to preclude beneficiaries of previously approved I-140 petitions from benefiting from the opportunity of applying for adjustment of status under this provision.

Recapture of Unused H-1B Visa Numbers

The provisions would also allow for the recapture of unused H-1B numbers going back to the effective date of the Immigration Act of 1990 (October 1, 1991), which is the legislation that first created the current H-1B visa category. It is estimated that there may be as many as 300,000 unused H-1B numbers available, and they would be released at the rate of 60,000 per year once the annual statutory cap of 65,000 is reached. An employer seeking to have a recaptured H-1B visa allocated to a prospective worker would be required to pay an H-1B recapture fee of $500.

Conclusion

The business community is in the process of examining the proposed language and will be meeting in the near future to discuss overall strategy and to investigate the possibility of adding other related provisions. We will continue to provide updates as these provisions make their way through the legislative process and the business community assesses its position.

Copyright © 2005 by Fragomen, Del Rey, Bernsen & Loewy, LLP