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LEGISLATIVE UPDATE
The most important legislative development to report this month is the approval by the Judiciary Committee of the US House of Representatives of the Smith Bill, a major immigration "reform" package. The bill was approved by a vote of 23-10 which was mostly split along party lines. House floor debate is expected to begin within the next two to four months. The following are major changes to the legislation since it advanced from the House's immigration subcommittee (see our June and July issues for a more complete discussion of the original bill): 
Green card lottery - the diversity visa lottery has been restored, albeit in a much smaller, more restrictive form. 27,000 visas will be issued each year (the current annual number is 55,000). In a key shift from prior policy, anyone unlawfully present in the US in the five years preceding the application for lottery would be ineligible for a lottery visa. The new lottery rules would also require an employment offer, a high school degree (or its equivalent) and at least two years experience in an job requiring at least that much experience (similar to the current requirement for skilled worker immigration). 
The national interest waiver and the outstanding researcher and professor categories have been restored in their current form. 
The unskilled worker category was not added back to the bill, but new experience requirements for skilled and professional workers were eased. In the earlier version of the Smith Bill, professional workers would need five years experience to apply for immigration and skilled workers needed seven years experience. Amendments have changed the bill to now require two years experience for professional workers and four years experience for skilled workers. Experience gained while working on an H, E, or L visa will now be counted toward the two year/four year requirement. 
In the earlier version of the Smith Bill, adult unmarried sons and daughters of US citizens and permanent residents were removed from visa eligibility. The new version of the bill restores visa eligibility to a small portion of this group. To be eligible, the unmarried son or daughter must 1) never have been married, 2) childless, 3) between the age of 21 and 25 and 4) a dependent under Federal income tax rules. Residence would be conditional for three years (similar to conditional permanent residency given to many spouses of US citizens). The criteria to lift permanent residency has not been clearly specified yet. Only 5,000 to 10,000 visas will be available in this category. The elimination of visa eligibility for married sons and daughters and siblings of US citizens remains unchanged. 
An earlier requirement that 50% of a parent's children reside in the US in order for a US citizen child to petition for the parent's green card has now been eliminated. At least 25,000 visas have been guaranteed in this category. 
The 245(i) adjustment of status eligibility, which became available in October 1994, has been restored, though in a considerably altered state. 245(i) allow persons who are or were previously out of status, but have a current priority date for immigration, to apply for adjustment of status to permanent residency at a local INS office so long as they pay a penalty of five times the application fee (currently the application fee is 0). Also, if the applicant chose to pursue consular processing instead, if the applicant is currently out of status, he or she must remain outside the US for 90 days prior to reentering. Under the new 245(i), applicants would be required to pay 00 instead of the current 0 penalty. The 90 day bar to reentry was eliminated, however. 
The Smith Bill added a new income requirement that will bar immigration unless the petitioner can show an income level at least 200% of the poverty level for a family equal in size to the petitioner's family plus the immigrant. The Judiciary Committee has softened this provision by adding a provision that would allow co-signers for the affidavit of support. 
Portugal has been added to the Visa Waiver Pilot Program. 
The earlier version of the bill required asylum applicants to file for that status within 30 days of arriving in the US. That provision remains, but the Judiciary Committee has added a provision allowing for a waiver of the time limit in the case of "changed circumstances" in the person's country or the individual's personal circumstances. The current definition of "refugee" has been modified to include those coming to the US to avoid forced family planning. 
Suspension of deportation, a form of relief available to deportable persons who have been in the US continuously for seven years, who have had good moral character (normally, this means no criminal record) and whose deportation would cause extreme hardship to a US citizen or permanent resident family member, has been restored after being eliminated in the earlier version of the bill. Suspension would now only be available to spouses and children of US citizens and permanent residents. 
One of the harshest provisions of the Smith Bill is the ten year bar to admissibility for any one who has been out of status in the US for an aggregate of one year after the bill takes force. A discretionary waiver of the bar has been made available to judges for spouses, children and parents of US citizens and spouses and children of permanent residents. 
H-1B visas have been modified to an extent. The new bill divides H-1B employers into two categories - H-1B dependent (more than 15% of the employees are in H-1B status) and H-1B non-dependent (less than 15%). H-1B dependent employers with less than 150 employees could employ up to 20% of its workers in H-1B status. Those dependent employers with less than 21 workers could employ up to four H-1B employees. If an H-1B dependent employer submits a plan to the Department of Labor to become a non-dependent employer, they would be granted a five-year probationary period where they would not be subject to the hiring limits. Non-dependent employers would not have to deal with notice posting requirements for traveling employees unless the primary place of work changes. All H-1B employers would be required to pay at least 110% of the prevailing wage IF workers have recently been laid off. A new provision regarding prevailing wages was also added which would allow employers to rely on a prevailing wage determination from any source if the Department of Labor does not object in writing within 45 days. 
Next up in the legislative process is the Senate's version of an immigration package. Senator Simpson, chairman of the Senate's immigration subcommittee is spearheading the efforts. His bill is being circulated as a working draft, but has yet to be introduced. As previously reported, his bill would halve employment-based immigration to 75,000 and cut family-based immigration even further. On the employment side, he favors replacing labor certifications with a system where employers pay a fee into a retraining fund equal to 30% of the worker's annual pay. Simpson is also said to be considering tying the fee to a point system similar to the Canadian immigration system. The schedule for action on the Senate bill is far from certain especially since the budget debate is currently the predominant concern.