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THE RAISE ACT FORECAST

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The Reforming American Immigration for a Strong Economy Act (“Raise Act”) would “amend the Immigration and Nationality Act establishing a skills-based immigration point system to focus family-sponsored immigration on spouses and minor children, to eliminate the Diversity Visa Program, to set a limit on the number of refugees admitted annually to the United States, and for other purposes”.  Currently, our immigration system is broken up as follows:

Source: Department of Homeland Security, 2015 Yearbook of Immigration Statistics.

The Raise Act would eliminate the Diversity Visa Program all together.  This program currently gives 50,000 visas to people from designated countries in the name of diversity.  The Raise Act would also lower the annual refugee admissions to 50,000.  Last year the U.S. accepted 84,995 refugees, led by those from Congo, Syria, Burma, and Iraq. Importantly, Refugee status is not to be confused with Asylee status, which is not changed by the Raise Act.

The Raise Act would greatly alter the family-based category as well as the employment-based category. The most common type of immigration currently is through family-based petitions.  Within the family-based eligibility category, there are visa capped and upcapped categories.  In the upcapped category, a green card is immediately available to applicants.  Within the capped category, there are several variations in which different wait times are provided based on visa availability. These visa wait times can be found on the U.S. Department of State’s website under the most current visa bulletin, which is updated each month.

The Raise Act will change both the capped and uncapped categories in family-based petitions. Currently, a “child” is defined as an individual who is unmarried and under the age of 21. Overall, the age limit cap for a “child” will lower from 21 to 18 years of age. Therefore an adult will be considered over 18 and a child, anyone under 18 years of age for immigration purposes.  This has major implication for the Child Status Protection Act (CSPA) which is currently capped at 21 years of age.  The CSPA allows for the time a visa petition is pending, due to excessive processing times or backlogs on visa availabilities, to be subtracted from the beneficiary’s (child) age at the time the visa become available so that the family is not penalized for the time it took for USCIS to adjudicate their petition.

Under capped categories, U.S. citizen can sponsor unmarried adult children (F1, First Preference Category), married adult children and siblings (F4, Fourth Preference Category) and legal permanent residents can sponsor visas for their children and spouses (F2A, Second Preference Category), and for their adult unmarried children (F2B, Second Preference Category).  Specifically, this bill will eliminate family-based immigration category of adult married sons and daughters of U.S. citizens (F3), which is currently backlogged over almost twelve years (July 8, 2005).  It will also eliminate the category of unmarried sons and daughters (21 years of age or older) of U.S. Permanent Residents (F2B), which is currently backlogged over seven years (November 1, 2010). Further, it will also eliminate the category of siblings of adult U.S. citizens (F4), which is currently backlogged almost thirteen years (May 8, 2004). Lastly, because the age of a child will change from 21 to 18, the remaining two categories people would remain eligible for a family-based petition, which are unmarried adult children of U.S. citizens (F1) and spouses and children of Permanent Residents (F2A) will be greatly affected. Specifically, all those children under 21, who were before immediately eligible for a visa in the uncapped category, will now fall into the capped unmarried adult children of U.S. citizen (F1) category unless under 18, which very well may backlog this category.  In addition, those children under 21 but over 18, who were eligible under the visa category of F2A, appear to have no relief.  Overall, these changes would result in the family capped categories lowering from 226,000 green cards to 88,000.

Currently, for uncapped categories (unlimited), U.S. citizens can sponsor spouses, minor children, and parents without numerical limitations. However, as described above, a minor child will no longer be anyone under 21 years of age and will be changed to anyone under 18 years of age. Also, within the uncapped categories, the parents will no longer qualify for a green card; however the bill does create a non-immigrant classification for alien parents of a U.S. citizen.

For the employment based visa category, the green card has been capped at 140,000 annually since its creation in 1990, which will go unchanged. Under the current system, the follow channels exist:

  • persons of extraordinary ability or multi-national managers;
  • professionals with advanced graduate degrees or exceptional ability;
  • professionals who are skilled workers and unskilled workers;
  • special immigrants who meet U.S. national interest; and
  • immigrant investors.

 

The RAISE Act would replace this selection scheme with a points system in which intending immigrants would earn points.  The tie-breaking factors are as follows: Education will be determined first; those with the highest educational degree will receive the most points. Applicants with equal points and equal educational degrees will then be ranked according to their English language proficiency test rankings.  Thereafter, applicant with equal points, equal educational degrees, and equal English language proficiency test ranking, will be ranked by their age.  Those nearest to their 25th birthday will be ranked highest in this category.  Currently no country can receive more than seven percent of the green cards available in any capped category.  This bill will eliminate per-country caps and determination will be based solely on the points system.

Applicants will remain eligible once ranked for twelve months.  Those that are not selected in the twelve month period may reapply thereafter.  Every six months, the Director of United States Citizenship and Immigration Services will invite the highest ranking applicants.  Once invited, an applicant has 90 days to apply for an immigrant petition with the Director. Specifically, the application must include the following: proof of annual salary to be offered, that the job offered does not displace a U.S. worker, proof of attainment of health insurance, as well as filing fee.

Because of the Raise Act’s allocation of points for higher education and English skills, those who currently reside in the U.S. under temporary worker and student status will most likely benefit from this system which helps keeps those trained and educated in the U.S. here permanently over those applying from abroad.  This point system also has the potential to widen the path for extraordinary ability applicants to enter under the employment-based category.  These applicant currently come in small numbers, however under the points system, it appears they would gain some advantages.

Countries, such as Australia, New Zealand and Canada have a long history of a points based system.  The United Kingdom has also begun implementing a new point based system. As mobility between countries ever increases, those that have a point based system will continue to attract those most talented from around the world.  A family-based system will not have the competitive edge and the existing “brain drain” problem will continue.

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