On the road to reform, the Senate’s Border Security, Economic Opportunity, and Immigration Modernization Act contains several changes and new provisions for skilled immigration and entrepreneurship. Specifically, the bill provides balanced reforms to the H-1B nonimmigrant visa for high-skilled individuals, various provisions for highly skilled individuals through permanent employment-based immigration, and a new INVEST visa for entrepreneurs.
H-1B High-Skilled Nonimmigrant Visa: The bill increases the current annual H-1B cap from 65,000 to 110,000. In subsequent years, a High Skilled Jobs Demand Index will calculate the number of H-1B visas available, not to exceed 180,000, and which cannot increase or decrease by more than 10,000 per year. Additionally, the number of H-1B visas available for U.S. advanced degree holders who are exempt from the cap increases from 20,000 to 25,000. While the bill represents an attempt to balance an increase in H-1B visa numbers with greater protections against fraud, there are certainly differences of opinion on the positives and negatives contained within this component of the bill.
High-Skilled Employment-Based Immigration: Regarding permanent immigration and green cards, the bill creates a new merit-based immigrant visa for employment and family immigration. This new system assigns points to potential immigrants based on a variety of categories. Forty percent of worldwide employment-based visas will be available to individuals holding advanced degrees or their equivalent whose services are sought in the sciences, arts, professions, or business by an employer in the U.S. Persons holding a master’s degree or higher in a STEM field from an accredited U.S. institution of higher education within the past five years and who have an offer of employment in a related field are exempt from the annual visa cap.
INVEST Visa for Entrepreneurs: The bill creates a new “Investing in New Venture, Entrepreneurial Startups, and Technologies” (INVEST) nonimmigrant visa for entrepreneurs to establish a business, create jobs, and thereby strengthen the economy in the United States. The legislation also creates a new EB-6 immigrant visa for certain entrepreneurs with higher initial investment and job-creation criteria than the nonimmigrant INVEST visa.
While there is much work to do, the Senate bill represents a balanced approach. It offers a good start on the legislative journey towards comprehensive, common-sense immigration reform in 2013. However, one crucial yet unanswered question is whether or not the proposed High-Skilled Jobs Demand Index will precisely calculate changes in demand for H-1B visas? As it stands, the formula uses the Bureau of Labor Statistics’ category of “management, professional, and related occupations” for its unemployment variable, which may be overly broad. Furthermore, the demand variable may not adequately account for real place-based demand by geographic area.
Ultimately, we should aim for a bill that paves a path upon which employers are able to make hiring decisions more nimbly; workers have better protections, portability, and mobility; family unity is preserved (taking into account the many forms a “family” can take); and immigrant entrepreneurs have new opportunities to come to the U.S. to start businesses and create jobs.
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