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‘Compromise' Immigration Measure Would Overhaul Work Visas, Mandate Use of E-Verify

Monday, April 22, 2013

By Laura D. Francis  

A comprehensive immigration bill introduced April 17 by the Senate's “gang of eight” would make sweeping changes to employment-based visas and temporary foreign worker programs, require all U.S. employers to use E-Verify, and allow most undocumented immigrants currently in the country to apply for legal status and ultimately citizenship.

The gang of eight, led by Sens. Charles Schumer (D-N.Y.) and John McCain (R-Ariz.), also includes Sens. Richard Durbin (D-Ill.), Lindsey Graham (R-S.C.), Robert Menendez (D-N.J.), Marco Rubio (R-Fla.), Michael Bennet (D-Colo.), and Jeff Flake (R-Ariz.).

Schumer and McCain briefed President Obama April 16 on the particulars of the proposed legislation. After the meeting Obama released a statement calling the bill a “compromise.”

“No one will get everything they wanted, including me,” Obama said. “But it is largely consistent with the principles that I have repeatedly laid out for comprehensive reform.”

Bill Would Make E-Verify Mandatory

According to a summary of the bill provided to BNA, the bill would require employers to use the E-Verify electronic employment eligibility verification system, although the requirement would be phased in over five years.

Within two years of enactment, employers with more than 5,000 employees would have to use the system, while employers with more than 500 employees would have to use E-Verify within three years. After four years, E-Verify would be mandatory for all employers.

The bill also would make changes to E-Verify, including requiring noncitizen employees to produce a “biometric work authorization card” or “biometric green card” with a photograph that would be stored in the E-Verify system. For the immigrant to be able to work, his or her picture on the card presented to the employer would have to exactly match the one stored in E-Verify.

The legislation also would include due process protections for workers so they are not prevented from working as a result of an E-Verify error or because of employer negligence or misconduct.

Registered Provisional Immigrant Status

The bill would create a registered provisional immigrant (RPI) status for undocumented immigrants currently in the country who pay a $500 “penalty fee” in addition to back taxes and fees associated with the cost of processing the application. However, only those undocumented immigrants who were in the country prior to Dec. 31, 2011, and who have continuously resided here since then would be eligible to apply.

Immigrants with RPI status would be able to work for any employer in the United States, according to the summary.

Immigrants on RPI status after 10 years would be eligible to adjust to lawful permanent resident status through a new merit-based system if they have been continuously present in the United States, paid all taxes while in RPI status, worked in the United States regularly during that time, demonstrated knowledge of civics and English, and pay a $1,000 penalty fee.

Adjustment of status for RPI immigrants also only would be permitted if all immigrants currently waiting for family- or employment-based green cards have had their priority dates become current.

Undocumented immigrants could not obtain RPI status and RPIs--with the exception of young immigrants eligible for the DREAM Act and those qualifying for the agricultural worker program--would not be able to adjust to lawful permanent resident status until certain border security triggers are met.

Young immigrants eligible for the DREAM Act provisions of the bill as well as those qualifying under the agricultural worker program would be eligible for green cards after five years, and DREAMers would be eligible to apply for citizenship immediately after obtaining their green cards.

Employment-Based Green Cards

The bill would make numerous changes to the employment-based visa system, including exempting certain categories of immigrants from any annual caps on employment-based green cards: derivative beneficiaries of employment-based immigrants; immigrants with extraordinary ability in the sciences, arts, education, business, or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in any field; and certain physicians.

After those exclusions, the bill would allocate 40 percent of all employment-based green cards to immigrants with advanced degrees or the equivalent whose services are sought in the sciences, arts, professions, or business by a United States employer, including certain aliens with foreign medical degrees; and foreign nationals with a master's degree or higher in a STEM field from a U.S. college or university who have an offer of employment in a related field and whose degree was earned in the five years immediately preceding the petition.

The bill would increase the percentage of available employment-based green cards for skilled workers, professionals, and other professionals to 40 percent while maintaining the percentage of green cards for “special immigrants” at 10 percent and the percentage of green cards for those who foster employment creation at 10 percent.

The legislation also would create 120,000 visas under a “merit based” visa program that would award points to immigrants based on their education, employment, length of residence in the United States, and other considerations, with visas awarded to those immigrants with the most points. According to the bill summary, the new program would be aimed at immigrants with special talents, those in the immigrant worker programs, and those with family in the United States.

Revamped H-1B Program

The bill additionally includes major changes to the H-1B highly skilled guestworker program, among them increasing the base cap from the current 65,000 to 110,000 and the current 20,000 cap for guestworkers with advanced degrees to 25,000 for those with advanced degrees in STEM fields. The cap could reach as many as 180,000 visas under the bill.

Increases in the cap would be determined by a new “High Skilled Jobs Demand Index,” but the most that the H-1B cap could increase or decrease in a given year would be 10,000 visas.

The bill also would pay “significantly higher wages” to H-1B workers than under the current system, according to the bill summary. Employers also would be subject to new recruitment requirements.

In addition, the spouses of H-1B workers would be granted work authorization if the country of origin provides reciprocal treatment of the spouses of U.S. workers. H-1B workers would have a 60-day period to change jobs.

The legislation would “crack down” on employers abusing the H-1B program by requiring higher wages and fees from “H-1B dependent employers,” according to the bill summary. Among those provisions would be a prohibition on additional H-1B and L intracompany transferee visas for employers with workforces largely consisting of foreign guestworkers.

Creation of W Visa Program

For low-skilled, nonagricultural guestworkers, the bill would create a W visa program similar to the program proposed in late March by the AFL-CIO and the U.S. Chamber of Commerce, which had been tasked by the gang of eight with hashing out a program that would be palatable to both labor and business.

W visas would be available to foreign guestworkers hired by registered employers in a registered position, according to the bill summary. W visa holders would be permitted to bring their spouses and minor children to the United States, who also would have work authorization. The visa--as well as employer and position registrations--would last for three years and be renewable for additional three-year periods.

Beginning April 1, 2015, the cap would be split into two six-month segments. There would be an annual cap of 20,000 W visas in the first year, 35,000 in the second year, 55,000 in the third year, and 75,000 in the fourth year. After that, the bill contains a formula for determining the cap each year.

The bill also would provide a “safety valve” allowing the allocation of additional W visas where demand exceeds the cap and certain conditions are met. However, no more than 33 percent of registered positions per year can go to construction occupations, and the number of registered construction positions would not be permitted to exceed 15,000 per year or 7,500 per six-month period.

The bill would allocate $20 million to create a Bureau of Immigration and Labor Market Research to be housed within USCIS and tasked with, among other things, coming up with a way to determine the annual change to the W visa cap, supplementing the recruitment methods employers use to attract guestworkers, creating a methodology to designate “shortage occupations,” and making recommendations on employment-based visa programs.

The bill also would provide certain worker protections by excluding employers that within the prior three years had violated certain Occupational Safety and Health Act and Fair Labor Standards Act provisions. W workers would be permitted to move among registered employers, and employers would be prohibited from retaliating against workers who complain about possible violations of the law.

Employers would be required to pay W workers either the actual wage paid to other employees with similar experience and qualifications or the prevailing wage, whichever is higher. They would not be permitted to register a position if there currently is a strike, lockout, or work stoppage in the area where the W worker would be employed, and would be subject to certain restrictions if U.S. workers are laid off.

In addition, employers would be subject to recruitment requirements and would have to pay an application fee, including an additional fee based on the size of the business and the proportion of foreign guestworkers in registered positions.

Employers would not be permitted to hire W workers in a metropolitan statistical area with an employment rate of more than 8.5 percent unless the occupation is designated as a shortage occupation.

Support From Business Community

Many of those reacting to the Senate bill expressed satisfaction that it finally had been introduced after months of anticipation and several years of no congressional action.

“The current U.S. immigration system is holding America back from greater growth and innovation. We need a system that is efficient and embodies the needs of U.S. employers and the American workforce, allowing employers to access and retain critical talent, and we stand ready to work with all policymakers to ensure that it does,” American Council on International Personnel Executive Director Lynn Shotwell said in a statement April 17.

ACIP advocates for immigration changes on behalf of large, multinational employers.

The U.S. Chamber of Commerce also praised the bill.

“The Chamber has long called for comprehensive immigration reform that incorporates four critical components--increased border security, expansion of temporary worker programs and employer-sponsored green cards, some type of pathway to legalization and eventual citizenship under tight criteria, and a balanced and workable employment verification system. This legislation meets these goals,” Chamber President Thomas Donohue said.

“Now that we have comprehensive immigration reform legislation to review, the Senate Judiciary Committee can make progress on this important issue,” committee Chairman Patrick Leahy (D-Vt.) said in a statement April 17.

But Sen. Jeff Sessions (R-Ala.), who sits on the Judiciary Committee, April 17 expressed disappointment in the bill, which he said fails to improve immigration enforcement efforts before legalizing undocumented immigrants.

“Most importantly, this proposal would economically devastate low-income American citizens and current legal immigrants,” Sessions said. “It will pull down their wages and reduce their job prospects. Including those legalized, this bill would result in at least 30 million new foreign workers over a 10-year period … at a time when 90 million Americans are outside the labor force and a record number of our citizens are on welfare.”

On the House side, similar sentiments were echoed by Rep. Lamar Smith (R-Texas), who formerly headed the House Judiciary Committee.

“It's hard to believe, but the Senate immigration bill is worse than we thought. Despite assurances, the border is not secured before almost everyone in the country illegally is given amnesty. The bill guarantees there will be a rush across the border to take advantage of massive amnesty,” Smith said in a statement he made on the House floor April 17.

Attorney Says Bill 'Good News for Employers.'

“Almost across the board” the bill is “good news for employers,” attorney Greg Siskind of Siskind Susser in Memphis, Tenn., told BNA April 17. The only “losers,” according to Siskind, are staffing companies and employers with high numbers of highly skilled guestworkers, which are hit with higher fees in the segment of the legislation dealing with changes to the H-1B highly skilled guestworker program.

Siskind said it was not a surprise that the bill includes a requirement for employers to use the E-Verify electronic employment eligibility verification system. But he did find the “biometric” identification card provision “interesting” and said it would make completing the I-9 employment eligibility verification form easier.

Recognizing that the bill represents a compromise, National Immigration Law Center Executive Director Marielena Hincapié April 17 took issue with the E-Verify mandate. “Unfortunately, many of these compromises threaten the health and stability of immigrants and their U.S. citizen family members … by requiring U.S. employers to use an electronic employment eligibility verification system that is much more likely to hurt authorized immigrant workers than native-born workers,” she said in a statement.

“We should not sacrifice sound public policy at the altar of political expedience.”

Employment-based green cards are “probably where the best news is” in the bill, Siskind said, noting that the bill among other things would eliminate the per-country cap in that area.

But Siskind suggested that removing the per-country cap may not make much difference because of the other provisions that would greatly increase the number of available employment-based green cards, among them removing the current requirement that the spouses and children of employment-based green card holders also count against the 140,000 annual cap.

Siskind added that the bill's granting of legal status and a path to citizenship for a large portion of the 11 million undocumented immigrants currently in the country also will add to the labor pool.

Many of the advocacy groups' reactions to the bill focused on this aspect, although some expressed concern that the steps undocumented immigrants would have to take to obtain citizenship could put that goal out of reach.

“Our role is to make sure that roadmap leads to citizenship achievable not only in theory but in fact,” AFL-CIO President Richard Trumka said in an April 17 statement. “Workers care for the elderly, mow our lawns or drive our taxis, work hard and deserve a reliable roadmap to citizenship. And so the labor movement's entire grassroots structure will be mobilized throughout this process and across this country to make sure the roadmap is inclusive.”

“Is it perfect? No compromise measure ever is. Is it a good bill? Yes, for the most part it is, and perhaps it is even a great bill in some respects,” American Immigration Lawyers Association President Laura Lichter said in an April 17 statement. “This bill does not shy away from addressing the difficult issues embedded in current immigration policy. It's a good start, and I hope that by continuing to work across the aisle, the Senate can pass a bill that will meet our nation's needs and the House will follow suit.”

By Laura D. Francis  


   

Text of S. 744 is available at http://op.bna.com/dlrcases.nsf/r?Open=amky-96urju. Text of a summary of the bill is available at http://op.bna.com/dlrcases.nsf/r?Open=lfrs-96tras.  

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