Senate Passes Reconciliation Package
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Senate Approves Relief for Immigrant and Nonimmigrant Visa Shortage
On November 3, 2005, the Senate passed the Deficit Reduction Omnibus Reconciliation Act (S.1932) by a vote of 52-47. The Act includes language that would address the shortage of immigrant visa and H-1B numbers as well as impose new fees. On its way to passing the bill, the Senate voted to reject an amendment, offered by Senator Robert Byrd (D-WV), that not only would have eliminated the aforementioned provisions from the bill, but also would have added a provision from the House of Representatives version of the bill that would increase the L visa fee by $1,500. The Senate rejected the amendment by a vote of 85-14.
As we have previously reported, on October 20, 2005, the Senate Judiciary Committee approved language on October 20, 2005 that would raise millions of dollars for the U.S. Treasury and simultaneously address the shortage of certain immigrant and nonimmigrant employment-based visas. The package approved by the Senate Judiciary Committee was included in the Deficit Reduction Omnibus Reconciliation Act.
If enacted in its present form, the reconciliation bill would:
Impose an additional fee on employers for L-1 nonimmigrant classification of $750. The fee would be paid for visas pursuant to an initial admission under a blanket petition, as well as for petitions filed in the United States to initially grant L-1 classification and to extend status for the first time.
Make available an additional 30,000 H-1B visas per year from a pool of previously unused visas going back to 1991 - upon payment of an additional $500 fee - once the annual H-1B cap is reached.
Recapture and reissue unused employment-based immigrant visas ("green cards"), and increase the current quotas for the first, second and third employment-based immigrant visa categories by exempting spouses and children from the annual numerical limit. There would be an additional $500 fee imposed on all immigrant visa petitions. Unlike the new H-1B fee (which would attach to the extra visas only), the fee on immigrant visas would be permanent and would apply to all petitions, regardless of whether the visa comes from the recaptured pool or not.
Allow foreign nationals to file for adjustment of status in conjunction with an employment-based I-140 visa petition (either concurrently or following approval of the I-140 petition), even if there is no immigrant visa immediately available, so long as the petitioner/employer pays a $500 fee with the I-140. This would alleviate some of the hardship associated with the recent visa retrogression that left many I-140 beneficiaries without remedy. The benefits of being permitted to file an adjustment application immediately include the availability of work authorization and advance parole for foreign travel.
It is important to remember that, while the bill is progressing, it is still in the relatively early stages of the legislative process. Once both the House and Senate approve their respective budget reconciliation packages, they will then meet in conference to iron out the differences between their respective bills and vote on the final product. If passed, the bill will ultimately be sent on to the President for his signature. The most significant immigration-related aspect of the House version will likely be the $1500 L-1 fee, and it is difficult to predict the exact shape and form of the final legislation as the two chambers work out their differences.
We will issue further updates on this issue as this measure makes its way through the House and Senate.
Copyright © 2005 by Fragomen, Del Rey, Bernsen & Loewy, LLP