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The RAISE Act and Trump's Proposed New Legal Immigration System: What Might All This Mean for American Businesses?

August 8, 2017

On August 2, President Trump unveiled the RAISE Act, a Republican-sponsored bill, co-authored by Arkansas Senator Tom Cotton and Louisiana Senator David Purdue. According to The Washington Post, the bill's proposed changes could reduce annual legal immigration by 50 percent of today's roughly one million new green card holders down to 500,000. The bill would also reconfigure the current employment-based immigration system and institute a skills-based point system that would give certain immigrants priority based on such factors as age, educational level, offered annual salary, entrepreneurial investment and English language proficiency.

Glaringly, the RAISE Act does not seem to make accommodations for the lengthy delays currently being experienced by nationals of backlogged countries or the thousands of pending applications for individuals from countries such as India and China. Presumably, one must resubmit an application based on the new merit-based point system. Unfortunately, individuals who have been waiting for up to a decade or more for consideration would likely have aged out from benefits bestowed upon a younger immigrant planning a move to the United States.

The RAISE Act proposes changes in both family- and employment-based immigration to the United States. Here's a brief summary of the bill's general changes:

  • The bill would eliminate the current diversity visa lottery system approved by Congress in 1990 wherein 50,000 visas are annually offered to people hailing from countries with historically low rates of immigration to the United States. The lottery has been a route for foreign nationals of diverse backgrounds and often limited means to secure permanent resident status in the United States.

  • The bill would reduce the number of refugees admitted to the United States to 50,000 per year, slashing from past totals that sometimes exceeded 100,000 or more depending on global conditions as assessed by Congress.

  • The bill would also eliminate two current oft-utilized family based visa categories, including redefining the immediate relative petition category removing eligibility for immigration to the United States for siblings of U.S. citizens and parents of U.S. citizens. Parents would be granted nonimmigrant visa classification for a two-year period, renewable indefinitely, with assurances from the U.S. citizen adult child sponsor that the parent would not apply for U.S. public benefits.

  • The bill would redefine the statutory definition of "child." To date, children are permitted to accompany an eligible principal family member while still under the age of 21. The new definition would decrease the age to 18, thus cutting off the ability of dependent family members over the age of 18 to accompany a principal beneficiary immigrating to the United States.

The RAISE Act contains several key provisions that would impact U.S. companies that employ individuals from other countries:

  • The bill proposes to replace the current employment-based sponsorship system with a points-based merit system, similar to that which has been implemented in the Commonwealth countries, including Canada, the UK and Australia.

  • The new point system would retain the number of immigrants entering the United States through employer sponsorship - 140,000 on an annual basis - but allocations would prioritize those with higher-level academic degrees, English language proficiency, and those with entrepreneurial investment capabilities and further skewing in favor of potential immigrants closest to their 25th birthdays.

    Applicants would be placed in an applicant pool for 12 months and, if not selected during the period, would be eligible to reapply. Every six months, U.S. Citizenship and Immigration Services would invite the highest-ranked applicants in the pool to file a petition for a points-based driven immigrant visa. Family members, including the spouse and children under age 18 would be eligible to join the applicant in the United States. The points-based system ignores the highly sought-after executives who might be transferees in demand by large U.S. corporations contemplating intracompany transferees from global locations abroad.

  • The proposed point- based employment system would clearly favor young, highly educated and fluent English speakers. The test for English language proficiency specifically mentioned by the bill is the TOEFL (Test of English as a Foreign Language) as administered by the Educational Testing Service, routinely used for U.S. university admissions, or the IELTS (International English Language Testing System) as administered by a partnership between the British Council, IDP Education and Cambridge English Language Assessment.

    Current regulations and prerequisite requirements regarding English proficiency for English language in the naturalization context exempt certain individuals from English proficiency - long-term U.S. permanent residents and those over a certain age. No such exemption is found in the proposed bill.

  • The American Immigration Lawyers Association has criticized the RAISE Act, contending that its proposed merit-based system fails to take into account the needs of U.S. businesses for both highly skilled and educated foreign immigrants as well as a path for lower skilled labor, thus hindering the ability of U.S. businesses to grow and thrive, and curtailing legal immigration levels over the next decade. 

Others have noted that with the oncoming retirement of the Baby Boomer generation, the need to fill both low- and high-skilled positions will be thwarted if the immigration streams cannot replace the millions expected to retire in the next few decades. It remains to be seen how the RAISE Act will wind its way through Congress and whether it might be passed in its present or significantly altered form. U.S. Senator Charles Schumer has called the RAISE bill a "non-starter."

Regardless of whether the RAISE Act is passed or takes on a new form, it is clear that the immigration debate and the Trump administration have clearly placed the country's immigration agenda on a new playing field.

Our Immigration practice group will continue to monitor and report on developments in this area.

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