SMARTER Act Would Rename H-1B and Add Green Card Points

The bill promoted as a replacement for the H-1B visa mostly renames it. Its sharpest changes land on the green card system, where it would end sponsorship of parents and siblings and abolish the diversity lottery.

Rep. David Schweikert’s SMARTER Act, pitched on Oct. 19 as a plan to replace the H-1B program, would in fact keep the H-1B classification in the statute, relabel its holders “SMARTER nonimmigrants” and hand control of the annual cap to a new five-member board at the Commerce Department. The Arizona Republican, who chairs the Joint Economic Committee, introduced the bill, H.R. 10460, on Sept. 16. It has been referred to the House Judiciary Committee. For employers the H-1B changes are incremental. For families and the employment-based green card line, the bill would be a rebuild.

The timing matters because the administration has spent a year reshaping skilled immigration by rule and proclamation, from the wage-weighted H-1B lottery DHS finalized on Dec. 29, 2025, to the $100,000 petition fee, and several of those moves are tied up in court. The SMARTER Act is the most detailed attempt yet to write that “merit-based” direction into the statute, where it would be far harder to challenge.

What employers would see in the H-1B program

The cap starts where it is. The bill sets the first-year limit at 85,000, the same total employers live with today under the 65,000 regular cap plus 20,000 slots for U.S. advanced-degree holders. After that, the board would set the number each year and, from the second year, divide it among industries using measures such as labor shortages, unemployment and wages, with its decisions largely shielded from judicial review. The bill does not touch the cap exemptions in section 214(g)(5), which leaves an open question: whether the 20,000 master’s slots would sit on top of the board’s number, as they do on top of today’s 65,000.

The lottery gives way to revenue ranking. When registrations exceed the cap, visas would go “in the order that will most increase long-term tax revenue,” adjusted for geography. That goes further than the DHS weighted selection rule, which still runs a lottery but gives higher-wage registrations more entries. The prevailing wage would become the median pay of U.S. workers with the same education and experience, which would raise the floor for many entry-level jobs. In return, workers could change jobs across industries, and anyone in H-1B status at enactment could renew without leaving the country.

A points test and a smaller family system

Employment-based green cards would go to the highest scorers on a points scale, with no minimum score. Salary carries the most weight: an offer at 300 percent or more of the state’s median household income earns 28 points, against a maximum of 12 for English ability, 10 for age (peaking at 26 to 30) and 7 for a STEM doctorate from a qualifying institution. A Nobel-level achievement is worth 25. The per-country cap would be repealed, which has drawn notice in India, though any gain for Indian applicants would depend on how many visas the board allows.

Provision	Current law	SMARTER Act as introduced
H-1B annual cap	65,000 plus 20,000 advanced-degree	85,000 in first year, then set by the board
H-1B selection	Wage-weighted lottery (DHS rule)	Order of long-term tax revenue
Per-country cap	7 percent	Repealed
Parents of U.S. citizens	Immediate relatives, no cap	Category removed
Family preference level	226,000 minimum	88,000 minus certain parolees
Siblings and adult children of citizens	F1, F3, F4 preferences	Categories removed
Diversity visas	55,000 a year	Program repealed

Sources: Immigration and Nationality Act; 8 CFR 214.2(h) as amended Dec. 29, 2025; H.R. 10460 as introduced Sept. 16, 2026.

Family immigration would shrink to spouses and minor children of citizens and permanent residents. Of the 1,172,910 people who became permanent residents in fiscal 2023, 208,350 were parents of U.S. citizens, 23,690 were unmarried adult children of citizens, 19,180 were married children of citizens, 44,820 were siblings of citizens and 67,350 came through diversity programs. Together that is 363,390 people, about 31 percent of the year’s total, based on figures from the DHS Office of Homeland Security Statistics. Adult children of permanent residents would also lose eligibility but are not reported separately. The bill would also put a gold card in statute: 25,000 visas a year at $1 million plus a $15,000 fee for an individual, or $2 million plus the fee for a corporate sponsor.

Transition rules that reach back to September

One clause matters to anyone filing family petitions now. If enacted as written, any petition in an eliminated family category “filed after the date on which this Act was introduced,” and any visa application based on it, “shall be considered invalid.” The cutoff is Sept. 16, not the date of enactment. People scheduled to receive a visa within a year of enactment could still use it, and those left behind in old family categories would get 2 bonus points in the new system. Employment-based applicants whose approved petition has waited more than 365 days for a visa number would gain the job flexibility that today requires a Form I-485 pending 180 days.

Long odds this Congress, a template for the next

A bill introduced this late in the 119th Congress, which ends Jan. 3, 2027, is unlikely to move before it expires. Its value is as a template for the next Congress. The text as introduced has drafting glitches, including a gold card window that begins in fiscal 2026, a year that has already ended, and a cross-reference that cites the gold card section by the wrong number. Errors of that kind are usually fixed if a bill advances.

The committee’s Republican issue brief estimates the bill would save more than $335 billion over 10 years, and IANS reported a staff estimate that it would raise GDP by at least $549 billion over the same period. Those are the proponents’ projections; no Congressional Budget Office estimate has been published. Schweikert says the country needs a workforce that “continues to compete globally at the highest level,” according to IANS, and his committee’s issue brief ties the plan to an aging population and federal debt. The tradeoff the bill makes explicit, fewer family admissions for more skills-based ones, has divided Congress for decades, and ending parent and sibling sponsorship is the piece most likely to meet resistance.

This article is for general information and is not legal advice.

Sources

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

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