The Senate's proposed Immigration Reform Bill (S. 744) is currently under review before the Senate Judiciary Committee. One of the key provisions of the Bill creates a merit-based immigrant visa, similar to the merit-based point system in Australia and Canada, but with some nuances that focus on family ties to the U.S. Applicants for this new visa will have to pay a fee of $500, and aliens admitted under the merit-based immigrant visa will have status as Legal Permanent Residents (LPR). The new merit-based point system repeals the Diversity Visa category, effective on October 1, 2014, but allows applicants who receive notification that they were selected for a diversity immigrant visa for FY2013 and FY2014 to remain eligible under the existing terms and procedures of the DV program.
Merit-based Points: Track One (Section 2301)
This provision establishes a new merit-based immigrant visa category with a numerical limitation set at 120,000 visas per year and allows for recapture of any unused visas. The numerical limitation is set to increase every year, with a cap of 250,000 visas for a fiscal year; however, there will be no increase in the number of visas if unemployment in the U.S. is above 8.5 percent.
First Four (4) Fiscal Years after Passage of Bill
The merit-based immigrant visas are initially aimed at clearing the backlog in the Third-preference and Other Workers employment-based visa categories. For the first four (4) fiscal years after passage of the bill, merit-based visas will only be available to skilled workers, professionals, and other workers under INA 203(b)(3). These are aliens who have filed employment-based immigrant petitions in the EB-3 and Other Workers categories. These categories currently have five (5) to ten (10) year backlogs. For instance, for Indian nationals in the EB-3 category, visas are only available for those aliens who filed the requisite labor certification prior to January 08, 2003.
Subsequent Fiscal Years
On the fifth and subsequent fiscal years, the merit-based immigrant visa will be open to all other applicants (201(e)), with 50% allocated for applicants with the highest number of points in Tier 1 and 50% allocated for applicants with the highest number of points in Tier 2. Applicants in each tier can earn points based on certain factors, including their level of education, employment history, civic involvement, English fluency, age, and family ties to U.S. citizens, among others.
The proposed bill also allows for recapture of any unused visas for the previous fiscal year, with 2/3 of the unused merit-based visas in each tier allotted to the same tier the following year, and the remaining 1/3 of the unused merit-based visas in each tier allotted to either Tier 1 or Tier 2.
See the following charts for an explanation of the merit-based points system for each tier:
Tier 1
| Qualification | Points | |
|---|---|---|
|
Education (can only recover points for one category) |
Doctorate |
15 |
|
Master |
10 |
|
|
Bachelor |
5 |
|
|
Employment Experience in the United States (max of 20 points) |
Zone 5 Occupation* |
3 per year |
|
Zone 4 Occupation |
2 per year |
|
|
Employment related to Education |
Zone 5 Occupation |
10 |
|
Zone 4 Occupation |
8 |
|
|
Entrepreneurship |
Began a business that employs at least 2 employees in a Zone 4 or Zone 5 occupation |
10 |
|
High Demand Occupation |
Employment in the US in 1 of the 5 occupations most highly sought for H-1 category during previous fiscal year |
10 |
|
Civic Involvement |
Engaged in a significant amount of community service |
2 |
|
English Language |
TOEFL Score of 80 or more, or equivalent |
10 |
|
Siblings and Married Sons and Daughters of Citizens |
Sibling of a US citizen, or is more than 31 years old and a married son or married daughter of a US citizen |
10 |
|
Age |
18-24 years |
8 |
|
25-32 years |
6 |
|
|
33-37 |
4 |
|
|
Country of Origin |
If national of a country of which fewer than 50,000 nationals were lawfully admitted to permanent residence in US in last 5 years |
5 |
*Zone 1-5 Occupations will be determined by O*Net, the Occupational Information Network Database
Tier 2
| Qualification | Points | |
|---|---|---|
|
Employment Experience in the United States (max of 20 points) |
Lawful U.S. employment |
2 per year |
|
Special Employment |
High demand Tier 2 occupation (employment in US in 1 of the 5 occupations most highly sought to become registered positions by US employers for the previous fiscal year) |
10 |
|
Zone 1 or Zone 2 Occupation |
10 |
|
|
Caregiver |
Beneficiary is or has been a primary caregiver |
10 |
|
Exceptional Employment Record |
Determined by Secretary of Homeland Security. Factors include: promotions, longevity, changes in occupation from lower job zone to higher job zone, good safety record, and increases in pay |
10 |
|
Civic Involvement |
Engaged in a significant amount of community service |
2 |
|
English Language |
TOEFL Score of 75 or more, or equivalent |
10 |
|
TOEFL Score of more than 21 and less than 75, or equivalent |
5 |
|
|
Siblings and Married Sons and Daughters of Citizens |
Sibling of a US citizen, or is more than 31 years old and a married son or married daughter of a US citizen |
10 |
|
Age |
18-24 years |
8 |
|
25-32 years |
6 |
|
|
33-37 |
4 |
|
|
Country of Origin |
If national of a country of which fewer than 50,000 nationals were lawfully admitted to permanent residence in US in last 5 years |
5 |
Registered Provisional Immigrants and Pending Immigrants
Aliens in the newly created Registered Provisional Immigrant (RPI) status may only begin accruing points for the merit-based visa no earlier than ten (10) years after the date the Reform Bill is enacted into law.
Additionally, aliens with a pending or approved immigrant petition in another immigrant category will not be eligible to apply for the merit-based immigrant visa.
The number of points allocated to each category may be modified upon a proposal to Congress submitted by the Secretary of Homeland Security.
Merit-based Points: Track Two (Section 2302)
This provision establishes a second track for the merit-based immigrant visa category. Aliens admitted under these provisions will also have Legal Permanent Residence (LPR) status. These provisions are designed to clear up the current backlog in available visas and aliens described under this section will be eligible for the merit-based immigrant visa beginning October 1, 2014.
Employment-Based Immigrants
Employment-based immigrants who filed an immigrant petition before enactment of law under INA 203(b) will be eligible for the merit-based immigrant visa, if their immigrant visa has not been issued within five (5) years of the petition being. In each of the fiscal years from FY2015 to FY2021, the number of merit-based immigrant visas allocated for employment-sponsored merit-based immigrant visas will be equal to 1/7 of the total number of aliens whose employment-based immigrant visa has been pending for 5 years. These visas will be issued in the order that they were filed (i.e. via priority dates).
Family-Based Immigrants
Family-based immigrants who filed an immigrant petition before enactment of law under INA 203(a) will be eligible for the merit-based immigrant visa, if their visa has not been issued within five (5) years of the petition being filed. Beneficiaries of current F3 and F4 visa petitions (married sons and married daughters of U.S. citizens and brothers and sisters of U.S. citizens) that have been pending for five (5) years, and the petition was filed after the date of enactment of the law, will also be eligible. In addition, spouses and children of Legal Permanent Residents (LPR) will be automatically re-classified as immediate relatives under 201(b)(2)(A).
For each of the fiscal years from FY2015 to FY2021, the number of merit-based immigrant visas allocated for family-sponsored merit-based immigrant visas under this provision will be equal to 1/7 of the total number of aliens whose employment-based immigrant visa has been pending for 5 years, minus spouses and children of LPRs, who will be re-classified as immediate relatives.
Beginning in FY2022, the Secretary will allocate a number of merit-based immigrant visas for family-sponsored merit-based immigrant visas equal to the number of beneficiaries of current F3 and F4 petitions whose visas had not been issued by FY2022. Moreover, beginning in FY2023, the visa number will be equal to the number of beneficiaries of current F3 and F4 petitions whose visas had not been issued by FY2023.
Long-term Workers
Long-term workers are aliens who were not admitted under the W visa, and who have been lawfully present in the U.S. for not less than ten (10) years. Moreover, beginning in FY2029, the alien must have been lawfully present in an employment authorized status for at least 20 years before the alien under this provision can adjust status to LPR status.
Repeal of the Diversity Visa Program (Section 2303)
This provision repeals the Diversity Visa Program, which will be replaced with the Merit-based Immigrant Visa system. Aliens selected under the Diversity Visa Program for FY2013 and FY 2014 will remain eligible to receive their Diversity Visas under the Program's rules.
2303-Repeal of Diversity Visa Program
Recapture of Unused Visas on a Worldwide Level (Section 2304)
This provision establishes a new worldwide level of employment-based and family-based immigrant visas and allows for the recapture of any unused visas on a worldwide level.
Employment-based
For FY2015, the worldwide level for employment-based immigrant visas will be 140,000 plus any unused family-sponsored visas from the previous fiscal year plus any unused employment-based immigrant visas between FY1992 to FY2013. After FY2015, employment based worldwide levels for a fiscal year will be equal to 140,000 plus the number of any unused family-sponsored visas from the previous fiscal year.
Family-based
For FY2015, the worldwide level for family-based immigrant visas will be 480,000 minus the newly reclassified immediate relatives of LPRs, plus any unused employment-sponsored visas from the previous fiscal year plus any unused family-based immigrant visas between FY1992 to FY2013. After FY2015, worldwide levels for family-based immigrant visas will be 480,000 minus the newly reclassified immediate relatives of LPRs, plus any unused employment-sponsored visas from the previous fiscal year.
Reclassification of Spouses and Children of LPRs as Immediate Relatives (Section 2305)
As mentioned above, spouses and minor children of LPRs will be reclassified as immediate relatives, thereby affording them protections regarding the death of or abuse by the U.S. citizen spouse or parent. This provision will also amend the current visa allocation for immediate relatives:
- Category 1: Unmarried sons and daughters of U.S. citizens (USCs): 20% of the worldwide level
- Category 2: Unmarried sons and daughters of LPRs: 20% of worldwide level, plus any unused visas for Category 1
- Category 3: Married sons and married daughters of USCs: 20% of worldwide level, plus any unused visas for Category 2
- Category 4: Siblings of USCs: 40% of worldwide levels, plus any unused visas for Category 3
This provision also includes language requiring the Secretary to terminate the registration of any alien who fails to adjust status within one (1) year of notification of the availability of an immigrant visa, as well as the termination of relaxes some of the registration of any alien who fails to apply within one (1) year of notification of the availability of an immigrant visa.
This provision also provides for the retention of the earliest priority date for an immigrant petition for the individual, regardless of the category of subsequent petitions, and sets the priority date as the date of filing of the petition or the labor certification.
Allocation of Immigrant Visas (Section 2307)
In addition to setting forth the allocation of immigrant visas for various categories family and employment-based immigrant visas, this provision also exempts certain aliens from being subject to the worldwide levels or numerical limitations. These include: derivative beneficiaries of employment-based immigrants, aliens with extraordinary ability in the sciences, arts, education, business, or athletics, outstanding professors and researchers, multinational executives and managers, doctorate degree holders, and certain qualified physicians.
This provision also exempts from worldwide levels and numerical limitations individuals with a U.S. Master's degree or higher in a STEM field from a U.S. institution of higher education, who has an offer of employment from a U.S. employer in a related field, and earned the qualifying degree within five (5) years of the filing of the immigrant petition. This provision also removes the requirement for labor certification for STEM workers.