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.
The “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744) was introduced in the Senate early Wednesday morning by the “Gang of Eight,” a group of bi-partisan senators. The bill’s key features include: enhancement of border security and mandatory enrollment in the E-Verify program; legalization and a “pathway to citizenship” for unlawfully present individuals who entered the U.S. before December 31, 2011; and significant expansion of employment-based immigration coupled with elimination of the visa lottery and reduction of family-based immigration options.
The items in the proposed legislation of most importance to employers include:
- All employers would be required to enroll in E-Verify within 5 years.
- The bill would dramatically increase the number of temporary employment options for foreign workers. Specifically, the number of H-1B visas for temporary professional workers would increase from the current 65,000 visas per year (with additional 20,000 set-aside for graduates of U.S. graduate schools) to between 110,000 and 185,000 per year (with additional 25,000 set-aside for graduates from U.S. graduate schools pursuing STEM degrees). Furthermore, spouses of H-1B workers would be eligible for employment authorization, as long as reciprocal employment authorization benefits are afforded to US citizens in the foreign national’s home country. However, the mechanics of the H-1B program would be more difficult than they are now, with the addition of a recruitment requirement for all H-1B labor condition applications with a 30-day posting on a U.S. Department of Labor website, a non-displacement attestation, a change in the way prevailing wages are determined, heightened fees for heavy users of the H-1B program, and additional fees for companies that outsource or lease H-1B workers to third-party companies. Companies would be banned from the FY2014 H-1B cap if more than 75% of their US workforce held H-1B or L-1 visas, from FY2015 if more than 65% of their US workforce held H-1B and L-1 visas, and from FY2016 if 50% of their US workforce held H-1B and L-1 visas.
- A W-1 visa would be created for lesser-skilled workers; a W-2 visa for foreign nationals coming to the United States temporarily to perform agricultural services or labor under a written contract; and a W-3 visa for "at-will" workers with an offer of full-time employment in an agricultural occupation. The W-2 and W-3 visas would replace the current H-2A agricultural worker program. Spouses of W visa holders would be eligible for employment authorization without the home country reciprocity prerequisites proposed for spouses of H-1B holders.
- The measure would dramatically increase the number of permanent employment options for foreign workers, and place restrictions on family-based immigration. Many individuals would no longer be counted against the immigrant visa quota, effectively increasing the number of green cards available each year by almost 400%. Specifically, EB-1 immigrants, doctoral degree holders, physicians who have completed a foreign residency requirement, and spouses/children of green card applicants would no longer be counted against the green card quota. Additionally, a new "EB-6" category for certain entrepreneurs would be created. Finally, the per-country caps on employment-based immigration would be removed, allowing for significant expansion of immigration for individuals from India and China.
- On the other hand, family-based immigration would be curtailed, with the elimination of the FB-4 category for siblings of U.S. citizens and the capping of eligibility for the FB-3 category (married sons and daughters of U.S. citizens) at age 31. Moreover, the diversity visa lottery would be eliminated.
- The bill would provide a pathway for citizenship for unlawfully-present individuals. Individuals who are unlawfully present and who entered the United States before December 31, 2011 would be allowed to obtain Registered Provisional Immigrant (RPI) status upon the payment of a penalty and back taxes. Individuals in RPI status would receive work authorization and would be able to travel abroad. RPIs would become eligible to apply for green cards after 10 years and for U.S. citizenship three years after acquiring a green card.
All told, the Border Security, Economic Opportunity, and Immigration Modernization Act would serve to greatly expand the employment options for foreign workers and the U.S. employers that hire them. The approximately 11 million currently undocumented individuals would be able to apply for employment authorization, significantly expanding the pool of workers available to U.S. employers. Employers of highly skilled workers would have expanded options for both hiring these workers on a temporary basis and retaining them on a permanent basis. If it succeeds, this legislation would be a boon to the U.S. economy.
For more information on potential immigration changes in the coming year, see Littler’s Workplace Policy Institute: Immigration Reform in 2013 - What U.S. Employers Can Expect.
Photo credit: Alexskopje