The bill, which passed out of committee on May 21, had bipartisan support in the Senate Judiciary Committee. But Senate Republicans remain divided over how much to support the bill and cooperate with President Obama. Republican supporters of the bill see passage of the reform measure as a way to garner support among Latino voters, who last year overwhelmingly supported President Obama and helped him win re-election. They hope to make modest changes to the bill during the upcoming floor debates, changes that could help secure broad support among both parties. One such GOP supporter of the bill called it a “thoughtful bipartisan solution to a tough problem.” Conservative Republican senators, on the other hand, hope to unravel this carefully crafted compromise package by unleashing amendment after amendment, which could gut the bill. Their goal is to defeat the bill altogether, or at least eliminate the provision for a pathway to citizenship for the estimated 11 million foreign nationals who are in the U.S. without authorization.

Meanwhile, President Obama, who has been a strong and vocal supporter of immigration reform, reasserted his position in a widely publicized speech, stating that Congress “needs to act and the time is now.” He added, “If you genuinely believe we should fix our broken immigration system, there’s no good reason to stand in the way of this bill.” The President’s remarks — his most forceful in weeks — signaled an effort to exert his influence at this important moment in the reform process. At the same time, he is mindful that being too far in front on immigration could backfire, upsetting the delicate balance negotiated thus far. The president’s re-focus on immigration reform is encouraging; ultimately his active support — at least behind the scenes — will be key to getting the bill passed.

While legalization and a path of citizenship for the 11 million is certainly the center piece of immigration reform — and perhaps the single most divisive issue — there are many fundamental and significant changes to the current system that will impact the future flow of immigrants as well as those currently in the United States in status. Some of the most significant changes include:

Border Issues

The bill establishes heightened border security along the southern border and specifies requirements that must be met before legalization can move forward. Some of these include: an integrated entry-exit system at air- and seaports that collects machine-readable visa or passport information; implementation of a mandatory employment verification system; improvements to ports of entry, including an additional 3,500 CBP officers; a “Comprehensive Southern Border Strategy” (to achieve and maintain an effectiveness rate of 90 percent in all southern border sectors); and a “Southern Border Fencing Strategy” (to identify where fencing, including double-layer fencing, should be deployed).

Legalization and Path to Citizenship

Foreign nationals in the United States without documentation would be able to apply for Registered Provisional Immigrant (RPI) status. In order to be eligible, applicants would need to demonstrate that they were present in the U.S. prior to December 31, 2011, and have maintained continuous physical presence since then. Certain inadmissibility grounds will apply and bar an individual from RPI status, including certain criminal convictions. RPI status holders would be eligible to apply for a green card after holding RPI status for 10 years, and will be able to apply for citizenship three years afterwards. Individuals in RPI status would be able to work for any employer and travel abroad. (Spouses and children of RPIs who are present in the United States would be treated as derivative beneficiaries of the principal applicant.) Provision is also made for those who were present as of 12/31/2011 but who had been deported on noncriminal grounds.

Employment-Related Immigration

The bill provides significant exemptions to the annual numerical limitations for green cards by focusing on those who benefit the economy. These include highly skilled professionals – the current “EB-1” preference categories of extraordinary ability, outstanding professors and researchers, multinational executives and managers; Ph.D. graduates in a STEM (science, technology, engineering, and math) field; and foreign physicians who have completed the two-year home residence requirement, if subject, or obtained a waiver. An increased number of green cards would be made available to professionals holding advanced degrees; certain individuals earning a U.S. master’s degree in a STEM field; skilled workers; and others. Derivative beneficiaries — the family members of such applicants — will not be counted against the annual visa limits.

H-1Bs

The bill raises the limits on H-1Bs to levels that are closer to the realities of today’s marketplace, but requires all employers to recruit American workers by posting job openings and conducting additional good faith recruitment efforts. Certain H-4 spouses would receive employment authorization.

Family Immigration

The bill improves the family-sponsored immigration system by eliminating the current visa backlogs within 10 years; recapturing unused visas from past years; allowing parents of U.S. citizens to bring their minor children at the time they immigrate;, and treating spouses and minor children of lawful permanent residents (LPRs) as immediate relatives and thus permitting them to apply for permanent residence immediately. But, the bill also eliminates the ability of U.S. citizens to petition for their siblings or for their adult married sons and daughters over the age of 31.

Merit-Based System

S.744 creates a new merit-based system where individuals would compete annually for a set number of visas. The new system would function alongside the family and employment systems, awarding points for meeting criteria, such as length of employment, skill level, education, English language, and age. Points would also be given for being a sibling or a married son or daughter over 31 years old.

Other Provisions

The 867-page bill includes a number of other provisions impacting discretion, judicial review, repeal of the diversity visa program, creation of a new W visa for low-skilled positions, and reform to the “Conrad 30” program for foreign physicians.

If enacted, certain provisions will become effective shortly after the bill becomes law and others, such as legalization mentioned above, will require a series of enforcement measures to go into effect. Changes in family- and employment-based immigration categories, for example, would go into effect gradually, giving DHS the opportunity to reduce extensive backlogs that have built up over the years.

What can we expect during the next three weeks? Senate Democrats and Republicans are expected to consider and debate hundreds of amendments. Generally, the noncontroversial amendments will be accepted on a bipartisan basis with the most controversial held off to later in the process, presumably around June 24. Some amendments will require 60 votes; others a simple majority. Meanwhile, the Congressional Budget Office (CBO) will release a score for the bill — estimating how much the bill will cost the government (add or reduce the deficit) over the next 10 years.

Because Senate rules generally do not establish limits on the length of debate, the only formal procedure that Senate rules provide for breaking filibusters (endless amendments being offered, one senator speaking at length, etc.) is to invoke cloture. When Senate Majority Leader Harry Reid has decided that the time for offering amendments has expired, he will invoke cloture to end debate on the bill. If any Senator objects to cloture, it will then require 60 votes to end debate and move to a final vote. If cloture is successfully invoked, there will be an additional 30 hours of debate and amendments. Assuming cloture is invoked, the Senate will vote on the bill as amended. That vote only requires a simple majority of the Senate for passage, and is expected in early July. Then, focus moves to the House of Representatives – the second critical phase of this bill’s legislative process – where similar provisions are reportedly making their way through the Republican-controlled House. Members of the House may introduce their own comprehensive package, or may choose to vote on a number of separate immigration bills that are packaged together for consideration. If the House passes one or more bills that differ from the Senate bill, they will need to be reconciled.

Proponents of immigration reform are hoping that President Obama will find a substantial immigration reform bill on his desk in August. But, a lot of work has to be done in order to make that happen.

The CBP Inspector’s Field Manual (IFM) explains that the length of time spent abroad is not the sole indicator of abandonment. The IFM notes that other indicators of possible abandonment are “employment abroad, immediate family members who are not permanent residents, arrival on a charter flight where most passengers are nonresidents with return passage, lack of a fixed address in the U.S., or frequent prolonged absences from the U.S.”  In questionable cases, the IFM advises officers “to ask for other documentation to substantiate residence, such as a driver’s license and employer identification cards.”

CBP representatives in Baltimore, for example, have said that its officers are focused less on the length of time abroad and more on where the person actually lives. They also look at how many years the person has lived in the U.S., whether the person is employed in the U.S. or abroad, where family members live, and whether U.S. taxes have been paid. For CBP representatives at Washington (Dulles), domicile is the major issue.

Foreign nationals who expect to be absent from the United States for prolonged periods of time are advised to discuss their circumstances with an immigration lawyer who can thoroughly review all the facts of the situation and provide guidance on how best to avoid abandonment.  Filing an application for a Re-entry Permit may be one of several solutions to amassing indicia of one’s permanent intent to remain a U.S. resident.

• A Kauffman Foundation report (February 2013), “Give Me Your Entrepreneurs, Your Innovators: Estimating the Employment Impact of a Startup Visa” states that between 500,000 and 1.6 million new jobs could be created over the next 10 years as a result of a “Startup” visa, a proposal to make 75,000 visas available for current holders of H-1B and F-1 visas.

• The Center for American Progress (March 2013) reports that granting undocumented immigrants immediate citizenship would add $1.4 trillion to economic growth, increase tax revenues by $184 billion and create 203,000 jobs over the next decade.

• A May 2012 report of The Partnership for a New American Economy and the Partnership for New York, concludes that America’s position as the global magnet for the world most talented and hardest-working is in jeopardy. In the report, entitled “Not Coming to America: Why the U.S. Is Falling Behind in the Global Race for Talent,” the authors compare America’s immigration policies with those of other nations — and finds our policies irrational and undirected, in sharp contrast with the targeted, strategic approaches seen elsewhere.  They outline six specific immigration reforms that the country should adopt to continue to attract the most talented, innovative, and necessary workers: (1) Provide visas to the STEM graduates educated in American universities. (2) Award more green cards based on economic needs. (3) Create a visa program to allow foreign entrepreneurs to build their firms in the US. (4) Let American companies hire the highly educated workers they need. (5) Give seasonal and labor-intensive industries access to foreign workers when they cannot find Americans to fill jobs. (6) Allow local governments to recruit more immigrants to meet regional needs. These are expected to be the main tenets of the new reform proposal.

• And finally, National Economic Council Director Gene Sperling added his voice to the choir in a recent White House blog, stating that common-sense immigration reform is good for the economy, and describing how it would grow America’s GDP, stimulate small business growth, create more jobs, boost demand for consumer goods, and more.

USCIS and the Department of State (DOS) closely coordinate the implementation of the provisional unlawful presence waiver process, thus the 30-day RFE timeframe, states USCIS, will help streamline USCIS processing, prevent delays at the National Visa Center (NVC) and at consular posts, and allow applicants to complete immigrant processing in a more timely manner. Currently, the agencies act simultaneously, with USCIS adjudicating the Form I-601A at the same time DOS collects required information from the applicant to complete the immigrant visa packet. DOS holds the scheduling of the immigrant visa interview until USCIS has notified the NVC of its decision on the Form I-601A.  Adjudicators may, however, increase the response time for the Form I-601A after obtaining supervisory concurrence and when warranted by circumstances.

An individual coming to USCIS for an InfoPass appointment or as the guest of an applicant or petitioner will not be required to submit biometric data.

The individual’s experience under this new process will be similar to that of an ASC appointment.  USCIS will take two fingerprints and a photograph of the individual and input this information into the US-VISIT (U.S. Visitor and Immigrant Status Indicator Technology) Secondary Inspections Tool (SIT), a Web-based application that processes, displays and retrieves biometric and biographic data. US-VISIT also links databases associated with border inspections and security. After identity verification is satisfactorily completed, individuals will proceed to their interviews or be issued their immigration documents. In instances where biometrics don’t produce a verification, other steps will be taken, which may include reprocessing at an ASC or even further questioning if an identity is suspicious.

Why is this second round of biometrics being implemented?  USCIS says to protect against identity fraud and defend against threats to national security.

DACA Statistical Update: As of March 14, 2013, USCIS reports that more than 450,000 DACA (Deferred Action for Childhood Arrivals) applications have been received by the agency and almost 250,000 cases have been approved.

TPS Extended for Eligible Nationals from Honduras, Nicaragua; DED Extended for Liberians: USCIS has extended the designation of Honduras and Nicaragua for Temporary Protected Status (TPS) for 18 months from July 6, 2013, through January 5, 2015. Deferred Enforced Departure (DED) and work authorization of certain Liberians has been extended from April 1, 2013, through September 30, 2014.

Khartoum  Resumes Full Consular Services:  As of March 25, 2013, the U.S. Embassy in Khartoum, Sudan, will resume full consular services, including nonimmigrant visa (NIV) processing, and follow-to-join refugee/asylee processing.

The new form is two pages instead of one, includes new fields, and has been reformatted. Changes to the I-9 are geared toward clarifying and providing additional guidance to employers and employees about the I-9 process. USCIS hopes that clearer instructions will help employees and employers avoid making inadvertent errors that can be serious.

Employers who have previously completed an I-9 for current employees should not complete a new Form I-9, but the new form should be used for revalidation. (Unnecessary re-verification can violate the applicable anti-discrimination provisions of the immigration laws.)

USCIS also announced changes to the associated M-274, “Handbook for Employers, Guidance for Completing the Form I-9.”  It includes information about the new I-9 and explains how to complete the new form.  The new I-9 form and M-274 handbook are available at www.uscis.gov/i-9.

Employers would be wise to commence using the new form now.

Electronic Record

CBP will no longer require international nonimmigrants to fill out a paper Form I-94 Arrival/Departure Record upon arrival to the U.S. by air or sea. The agency will gather travelers’ arrival/departure information automatically from their electronic travel records. This automation is designed to streamline the entry process, facilitate security, and reduce federal costs. CBP estimates that it will save over $15 million a year.  Because advance information is only transmitted for air and sea travelers, CBP will still issue a paper Form I-94 at land border ports of entry.

The roll-out will be phased in throughout April and May; thus, nonimmigrants will continue to receive the paper Form I-94 until the automated process arrives at their airport or other port of entry.

Passport Stamp

Under the new process, CBP will issue an admission stamp in the passports of arriving nonimmigrants, as is current practice. The admitting CBP officer will make a handwritten notation indicating the status and authorized period of stay, similar to procedures used for travelers under the Visa Waiver Program. An electronic record for the arriving individual will be created upon admission.  This admission (or parole) stamp in a foreign passport will constitute evidence of alien registration as required under regulation. (Individuals without a foreign passport will be sent to CBP’s secondary inspection upon arrival into the U.S., where they will receive their electronic I-94 number. These individuals will be issued a paper I-94 with the pre-printed number crossed out, and the actual electronic I-94 number handwritten upon it.)

Computer Access to Arrival Record

Following automation, arriving nonimmigrants will be given a slip of paper directing them to www.CBP.gov/I94, a new CBP Web page (which is not scheduled to be live until the end of April) where individuals can view and verify the class and term of their admission in its electronic format. In order to access a given individual’s record of admission, seven data points will be needed, including name, passport number, date of admission, and port of admission. The Web portal allows nonimmigrants to print an admission record receipt. This data is expected to be accessible within approximately 24 hours of admission and available at any time. While CBP irons out the wrinkles of this new system, individuals are advised to check their admissions record.

Departing the U.S.

Individuals will not need to do anything differently upon exiting the United States. Those issued a paper Form I-94 would surrender it to the commercial carrier or to CBP upon departure. The departure will be recorded electronically with manifest information provided by the carrier or by CBP. If the individual did not receive a paper Form I-94, CBP will record the departure electronically via manifest information provided by the carrier or by CBP.

Correcting Errors

If an applicant was admitted incorrectly to the U.S., the applicant should visit a local CBP Deferred Inspection Site or port of entry to have his or her admission corrected. A list of Deferred Inspection Sites and ports of entry can be found at www.cbp.gov, under the “Ports” link at the bottom of the page.  If an applicant received an incorrect I-94 from U.S. Citizenship and Immigration Services (USCIS), the applicant should refer to Form I-102 available at www.uscis.gov/i-102.

Land Arrivals and Other Exceptions

Nonimmigrants arriving by land and certain classes of foreign nationals, such as refugees, asylum applicants, and parolees, will continue to receive paper Form I-94.  Information gathered by CBP when issuing a Form I-94 at a land border already is automatically uploaded to the CBP database.

Other Considerations

While there appears to be no legal reason compelling a nonimmigrant to print and keep a copy of Form I-94 from the CBP website, nonimmigrants who will need to demonstrate their class and term of admission for any ancillary purpose (e.g., I-9 employment eligibility verification, driver’s license application, Social Security number application) will need to print a copy of their admission record.

At least initially, air- and seaport arrivals will continue to have the option to request a paper Form I-94 to document their class and term of admission.  Both common carriers and CBP are expected to continue making paper forms available upon request. Nonimmigrants who do not have ready access to a computer and printer should avail themselves of this option.  CBP officers may also issue the paper I-94 in their discretion. Information from paper Forms I-94 will be manually entered into the CBP database.

Since the beginning of 2012, when CBP first indicated that it intended to eliminate the paper I-94, stakeholders raised a myriad of concerns associated with the paper I-94’s elimination. Of paramount concern was (and still is) the ability of state motor vehicle bureaus to address the change. Another issue involves foreign nationals seeking to use the automatic visa revalidation process.  Although CBP has advised that it will verify the I-94 electronically to re-validate an expired visa if the traveler meets the conditions of automatic revalidation, there is concern that this will not happen smoothly and without confusion. Another issue relates to the immigration forms themselves. Many USCIS petition and application forms used to request benefits, such as Forms I-129, I-130, and I-539, ask for a Form I-94 number. It appears that USCIS will print out the Form I-94.  Finally, it is unclear at this juncture whether the USCIS “Notice of Action” approving applications for change or extension of status (Form I-797) will continue to be issued with a Form I-94 at the bottom, as is current practice.

At least one benefit for the nonimmigrant is the elimination of the need to file for a replacement I-94 and pay a $330 fee to replace a lost record of admission.

Given the central role of Form I-94 in documenting proper admission and maintenance of status, the impact of its automation on the immigration process and ancillary benefits programs may be profound.

After the bill is introduced, supporters will undertake a very public “sales” campaign as the bill moves through the normal legislative process. Proponents of immigration reform must hold together an uncommon coalition of labor, business, conservatives, and liberals. The House of Representatives is expected to consider the immigration reform after the full Senate has debated the bill; it is not expected to introduce its own legislation.

More details are likely to emerge over the next few days.

On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing. USCIS conducted the selection process for advanced degree exemption petitions first; thus, all advanced degree petitions not selected were part of the random selection process for the 65,000 limit. H-1B petitioners will be notified via regular U.S. postal mail whether their petitions have been selected for adjudication. Premium-processed cases can expect to obtain e-mail notification of acceptance, although the adjudication of premium-processed H-1B cap cases will not begin until April 15, 2013.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. These include petitions for physicians with certain J waivers; petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations; and those petitions filed on behalf of H-1B workers who previously have been counted against the cap.