After months of negotiations, a bipartisan group of senators unveiled sweeping landmark legislation, proposing substantial changes to the country’s immigration laws.
The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, filed April 16, 2013, lays out a 13-year path to citizenship for most of the 11 million people living in the United States illegally, allocates billions of dollars to be spent on border security, creates new legal guest worker programs for low-income jobs and farm labor, mandates the use of E-Verify for most companies hiring new workers and expands overall immigration to the U.S. by 50 percent in the next 10 years.
The bill proposes ways to clears up green card backlogs, raises the cap for H-1B workers and creates a new “W-visa” program for lower-skilled workers.
The bill was crafted by four Democratic senators: Charles Schumer of New York, Dick Durbin of Illinois, Robert Menendez of New Jersey and Michael Bennet of Colorado; and Republicans John McCain of Arizona, Jeff Flake of Arizona, Lindsey Graham of South Carolina and Marco Rubio of Florida.
Aspects of the bill that impact the workplace include the following:
All employers would be required to use the E-Verify electronic employment verification system, phased in over a five-year period. Large employers with more than 5,000 employees would be phased in within two years.
Every noncitizen would be required to carry a “biometric work authorization card.”
Enhancements to the E-Verify system would include a photo-matching tool and the capability for employees to “lock” their Social Security numbers in the system to prevent others from using them. In order for the noncitizen to be cleared for a job, the picture on the card presented by the employee to the employer will have to match the identical picture the employer has in the E-Verify system. Employers would be required to certify that the photograph presented in person matches the photograph in the system.
The bill addresses what's been one of the biggest problems with the current system and projects eliminating the decades-long family and employment-based immigrant backlogs.
Beyond employment-based visas, the bill would create an entirely new category of "merit-based" visas. A merit-based visa, created in the fifth year after the bill becomes law, would award points to individuals based on their education, employment, length of residence in the U.S. and other considerations. Individuals with the most points would earn the visas; 120,000 visas will be available per year based on merit. The number would increase by 5 percent annually if demand exceeds supply in any year where unemployment is under 8.5 percent. A maximum cap of 250,000 merit-based visas is proposed.
Under this system the DHS would allocate merit-based immigrant visas beginning on Oct. 1, 2014, for employment-based visas that have been pending for three years, family-based petitions that were filed prior to enactment and have been pending for five years, and to long-term immigrant workers who have been lawfully present in the country more than 10 years. It is this category that those who are in the country illegally now would be funneled into after a decade as legalized residents.
Currently, only about 14 percent of green cards granted are employment based. That percentage could increase to as high as 50 percent under this proposal. The bill also emphasizes the need to shift immigration resources toward high-skilled immigrants. It creates a startup visa for foreign entrepreneurs who seek to emigrate to the United States to launch their own companies.
The bill exempts the following categories from the annual numerical limits on employment-based immigrants: derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in science, technology, engineering, and mathematics (STEM) fields; and physicians who have completed the foreign residency requirements or have received a waiver.
The bill redistributes 40 percent of the worldwide level of employment-based visas to high-skilled workers and those who have earned a master’s degree or higher in STEM fields from an accredited U.S. institution. The bill increases the percentage of employment visas for skilled workers and other professionals to 40 percent, maintains the percentage of employment visas for certain special immigrants to 10 percent and maintains visas for those who foster employment creation to 10 percent.
Married children over 30 years of age and siblings of U.S. citizens would no longer be eligible for a family preference in the visa application process and the bill would eliminate the 55,000 Diversity Visa Program recipients awarded by lottery each year that go largely to immigrants from Africa and Eastern Europe.
Those who were or are selected for diversity immigrant visas for fiscal years 2013 or 2014 would still receive their visas.
The plan calls for a sizable increase in high-skilled visas, fees for employers that hire large numbers of foreign workers, and institutes a ban on those companies applying for additional H-1B visas in the future.
The legislation would increase the current number of H-1B visas from 65,000 to 110,000, which could be increased to 180,000 visas based on demand for high-skilled jobs. The current 20,000 visa exemption for U.S. advanced degree holders would be amended to a 25,000 visa exemption for advanced degree graduates in science, technology, engineering, and mathematics from U.S. schools.
Provisions designed to keep high-skilled hiring from hurting U.S. tech workers include:
- “H-1B dependent employers” would pay significantly higher wages and fees than normal users of the program. Companies that get 30 percent or more of their workforce from H-1B visa holders would have to pay new fees.
- Prohibiting companies whose U.S. workforce largely consists of foreign guest workers from obtaining additional H-1B and L visas. In fiscal year 2014, companies will be banned from bringing in any additional workers if more than 75 percent of their workers are H-1B or L-1 employees. In 2015, that number goes to 65 percent and to 50 percent in 2016.
New Visa on the Block
The bill creates a new visa for lower-skilled workers in the service sector, construction and agriculture. The program begins April 1, 2015, and would be initially capped at 20,000. The cap would rise to 75,000 by 2019. For each year after 2019, the annual cap would be calculated according to a statistical formula based on employment conditions and labor shortages by a new agency housed within the Department of Homeland Security.
The spouse and minor children of the W visa holder will be allowed to accompany or follow to join and will be given work authorization for the same period of admission as the principle visa holder.
Immigrants would apply at U.S. embassies and consulates in their home countries, and the visa would be valid for three years. If visa holders are unemployed for 60 days or more, they would be required to leave the United States. The workers must be paid the prevailing wage and cannot be employed in areas where unemployment is above 8.5 percent in most cases. Employers cannot fire American workers 90 days before or after the hiring of guest workers. Construction companies would be limited to 15,000 workers a year or a 3 percent of total visas, whichever is lower.
The bill also puts in place a safety valve whereby additional guest workers could be made available, in excess of the cap, if companies need them, provided they pay them higher wages.
Agriculture Program Revised
A new agricultural guest worker visa program would be established. A portable, at-will employment based visa (W-3 visa) and a contract-based visa (W-2 visa) would replace the current H-2A program. The H-2A program would sunset after the new guest worker visa program is operational.
As many as 337,000 new three-year visas—122,333 each year for the first three years after the bill becomes law—would be available for farmworkers. After five years, an annual visa limit based on market conditions would be set.
The bill would allow current undocumented farm workers to obtain expedited legal status. Undocumented farm workers who “have made a substantial prior commitment to agricultural work in the United States,” show that they have paid all taxes, have not been convicted of any serious crime, and pay a $400 fine would be eligible to adjust to legal permanent resident status.
Spouses and minor children would receive derivative status.
The release of the Senate plan is the first shot of what’s expected to be a contentious months-long debate. Hearings have been scheduled before the Senate’s Judiciary Committee and a committee vote is expected in May. The bill would then go on to the full Senate. The prospects in the House are uncertain, even as a bipartisan group of House members are working on their own version of a comprehensive immigration bill.
Roy Maurer is an online editor/manager for SHRM.
Follow him at @SHRMRoy
ACIP, SHRM Release Solutions for Employment-based Immigration, SHRM Online Global HR, March 2013
Mandatory E-Verify Central to Immigration Reform, SHRM Online Global HR, March 2013
Senate Republicans Stress Enforcement Before Comprehensive Immigration Reform, SHRM Online Global HR, February 2013
Senate Bill Calls for Market-Based H-1B Cap, SHRM Online Global HR, February 2013
Higher Visa Fees, Penalties Foreseen with Immigration Reform, SHRM Online Legal Issues, January 2013
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