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Employment-Based Immigration Provisions of the US Citizenship Act of 2021

The Biden Administration introduced an immigration bill in Congress on February 18, 2021 – the U.S. Citizenship Act of 2021. Below is a summary of provisions that would directly impact employment-based immigration:

Sec. 3101: Recapture of immigrant visas lost to bureaucratic delay    

  • The annual ceiling for employment-based immigrants would be increased from 140,000 to 170,000. Further, recapture of unused visas from fiscal year 1992 through 2020 would be allowed. The effective date would apply to Fiscal year 2022 (October 1, 2021 – September 30, 2022). It is estimated that approximately about 180,000 to 250,000 unused green cards will be able to recapture through this provision. 

 Sec. 3105: Relief for orphans, widows, and widowers 

  • If a qualifying relative dies before the completion of immigrant visa processing, the derivative’s application can still be adjudicated as if the death had not occurred.

 Sec. 3401: Doctoral STEM Graduates from Accredited United States Universities 

  • Doctoral STEM graduates from accredited U.S. universities are not subject to numerical limitations 

Sec. 3402: Addressing Visa Backlogs 

  • Beneficiaries and their derivatives of an approved immigrant pitot with a priority date of more than 10 years will not be subject to direct numerical limitations. The effective date would be 60 days after enactment of the bill. 

Sec. 3403: Eliminating Employment-Based Per Country Caps 

  • Beginning FY 2022, employment-based per country caps would be eliminated. 

Sec. 3404: Increased Immigrant Visas for Other Workers 

  • Gives an extra 30,000 visas to EB-3 other workers. 

Sec. 3405: Flexible Adjustments to Employment-Based Immigrant Visa Program 

  • DHS and DOL can temporarily limit EB-2 and EB-3 in areas or labor market sectors that are experiencing high levels of unemployment 

Sec. 3406: Regional Economic Development Immigrant Visa Pilot Program 

  • A pilot program can be stablished for additional 10,000 green cards for those whose employment is essential to the economic development strategies of the cities or countries in which they will love or work. Labor certification will still be required for these immigrants. 

Sec. 3409:      H-4 Visa Reform 

  • H-4 children can extend their status beyond the age of 21 if the parent is maintaining status and the child was younger than 18 when first granted H-4 status. For purposes of filing an Adjustment of Status application, the child’s age “freezes” at the time of filing the I-140 or PERM. Further, ALL H-4 spouses and children would be eligible for EAD cards.

By: Rahul Reddy and Kristina M. Hernandez

Rahul is the founding partner of Reddy & Neumann P.C. His practice covers employment-based immigration, in which he represents corporate clients in far-ranging industries. 

Kristina is the NIV Practice Manager and an associate attorney at Reddy & Neumann, P.C. She was admitted to the State Bar of Texas in 2011. Her practice includes representing companies and individuals with employment-based visa petitions and applications and advising clients regarding litigation options in federal court pursuant to the Administrative Procedures Act (APA). Kristina also guides employers to ensure compliance with all Form I-9 requirements by conducting internal audits of clients’ records, processes, and procedures.