House Advances Bill Providing Green Cards to STEM Graduates

Update: On Nov. 30, 2012, the House passed the STEM Jobs Act of 2012 by a vote of 245-139.

The House of Representatives has decided to revisit a bill that would provide green cards to foreign students who earn certain high-level math and science degrees from U.S. universities. On November 29, the House adopted a resolution that will bring the STEM Jobs Act of 2012 (H.R. 6429) – a measure that would eliminate the diversity lottery green card program and instead redistributed 55,000 green cards to foreign students who graduate from a U.S. university with a Master’s or Ph.D. degree in science (excluding biological and biomedical fields), technology, engineering, or mathematics, the so-called “STEM” fields – to the House floor for a final vote. An earlier version of this bill failed to make headway in September when the House attempted to suspend its normal rules and pass the STEM Jobs Act outright, a procedural maneuver that requires a 2/3 majority vote. The final tally in favor of that measure was 257-158, about 30 votes shy of the amount needed. The House approved the rule to consider the latest STEM bill by a margin of 243-170.

Under the terms of the STEM Jobs Act, which was introduced on September 18, 2012 by House Judiciary Committee Chairman Lamar Smith (R-TX), the STEM graduates must be petitioned for by an employer who has gone through labor certification to show that there are not sufficient American workers able, willing, qualified and available for the job. The bill also sets forth a number of other requirements for employers, STEM graduates, and universities to participate in this program. The final bill does contain the following changes from the initial legislation:

  • The amended bill allows unused STEM green cards made available in fiscal years 2013 through 2016 to be utilized in future years under conditions set forth in the bill. The introduced bill provided for rollover of STEM green cards made available in 2013 and 2014.
  • The amended version eliminates a provision of the introduced bill requiring STEM green card recipients to promise to work for at least five years in the U.S. or for the petitioner in a STEM field.
  • The final bill eliminates a provision of the introduced bill that had required that in order to be eligible for the STEM green card programs, universities could not provide incentive payments to persons based on securing foreign students.

The House vote on the measure might be held as early as Friday, November 30, 2012.

Despite the bipartisan interest in a STEM visa program and strong support from various business and industry groups, the bill’s elimination of the diversity lottery program remains a strong sticking point with many Democrats. Therefore, even if the House ultimately passes the bill, it is doubtful the Democratically-controlled Senate will consider it during this lame duck session. Moreover, President Obama has issued a Statement of Administration Policy (pdf) that opposes this bill. While the statement claims that the Administration “strongly supports legislation to attract and retain foreign students who graduate with advanced STEM degrees, to establish a start-up visa for foreign-born entrepreneurs to start businesses and create jobs, and to reform the employment-based immigration system to better meet the needs of the U.S. economy,” it emphasizes that “the Administration does not support narrowly tailored proposals that do not meet the President's long-term objectives with respect to comprehensive immigration reform.”

Immigration Reform in 2013

There has been much speculation that comprehensive immigration reform will be an Administration priority in 2013. Therefore, the STEM visa issue will likely reemerge during the next Congressional term, either as a standalone bill or as part of a more comprehensive immigration package. Other STEM-related bills introduced in recent months, for example, would retain the diversity lottery program, and therefore might garner more bipartisan support.

The Attracting the Best and Brightest Act of 2012 (H.R. 6412) introduced by Rep. Zoe Lofgren (D-CA) on September 14 would create a new visa category (EB-6) that would provide up to 50,000 visas to STEM graduates. Any unused visas granted under the EB-6 category would be reallocated to other employment-based immigrant visa categories. In addition, this bill contains wage protection provisions to ensure that the STEM graduates would not undercut the wages paid to U.S. citizens with comparable levels of experience, and a 2-year sunset provision. This measure would also allow employers to obtain green cards for the students without requiring that they return to their home countries or obtain a temporary visa. With respect to the universities granting the STEM degrees, the Attracting the Best and Brightest Act would exclude for-profit schools from participation.

In the Senate, Sen. Chuck Schumer (D-NY) on September 19, 2012 introduced the Benefits to Research and American Innovation through Nationality Statutes (BRAINS) Act of 2012 (S. 3553), which would also provide up to 55,000 annual STEM green cards through a 2-year pilot program. The program established under the BRAINS Act shares many of the same requirements as the STEM Jobs Act, but does include certain differences. Some of these differences include the following:

  • STEM students would no longer be required to demonstrate that they have no desire to stay permanently in the U.S. as a precondition to being allowed to attend school in the U.S.
  • Any unused green cards under this program would be reallocated to other employment-based green card programs that are in place for highly-skilled STEM advanced-degree graduates from foreign universities.
  • Temporary workers on high-skilled visas who have not violated their status would be permitted to renew their visas from within the U.S. instead of having to return to their home countries to do so.

Congressional Hispanic Caucus Immigration Reform Principles

Anticipating that immigration reform will likely be addressed in 2013, the Congressional Hispanic Caucus (CHC) has weighed in with a set of nine principles (pdf) that it believes must be included in any comprehensive measure. According to the CHC, immigration must, among other things, include provisions that accomplish the following:

  • Provide visas for STEM graduates;
  • Establish a workable employment verification system that prevents unlawful employment and rewards employers and employees who play by the rules, while protecting Americans’ right to work and their privacy; and
  • Provide sufficient, safe, and legal avenues for foreign workers to fill legitimate gaps in our workforce, with full labor rights, protection from discrimination, and a reasonable path to permanency that lifts up wages and working conditions for both native and foreign-born workers and their families.

Photo credit: David Franklin

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.