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Immigration Reform Update: Senate Bill (S. 744) Introduced

April 23, 2013
Minsky, McCormick & Hallagan

On April 15, 2013, a comprehensive immigration reform bill (S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act”) was introduced by Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake (the “gang of eight”).  The eight hundred page bill comes out of the earlier “Bipartisan Framework for Comprehensive Immigration Reform” announced by the Senators in which they elaborated four basic legislative pillars for reform:

  • Create Path to Citizenship for Unauthorized Immigrants Already Here that is Contingent upon Securing the Border and Combating Visa Overstays
  • Improving our Legal Immigration System and Attracting the World’s Best and Brightest
  • Strong Employment Verification
  • Admitting New Workers and Protecting Workers’ Rights

Goals and Triggers

The bill sets as a goal to achieve and maintain effective control of certain sectors of the Southern border.  It allows 180 days for the creation and submission by the Secretary of Homeland Security of strategies to both achieve and maintain control of the Southern border and to identify where fencing, infrastructure, and technology should be deployed to ensure both persistent surveillance and a 90% effectiveness rate for apprehensions for all high risk sectors along the Southern border.

The bill also sets certain “triggers” or requirements that no immigrant in undocumented status may be adjusted to the new Registered Provisional Immigrant (RPI) legal status until each of these strategies has been submitted to Congress.  Similarly, it indicates that, except for DREAM Act and Agricultural legalization workers, no one in RPI status can adjust to full Lawful Permanent Resident Status until the Secretary of DHS certifies that both strategies have been implemented and are substantially operational or completed.

Resources for Border Security:  The bill also provides for significant additional Border Security Resources including funding for 3,500 additional Customs agents, authorization for the National Guard to be deployed at the Southwest border to construct fencing, increase ground-based mobile surveillance systems, deploy additional manned and unmanned aircraft for continuous surveillance of the Southern Border, to provide capability for radio communications interoperability between various agencies, to construct checkpoints, and to provide assistance to CBP.  Additional funding is also provided for border crossing prosecutions, for assistance to state/local law enforcement, and for additional border patrol stations and forward operating bases.

New RPI Status

The bill creates a new lawful status, Registered Provisional Immigrant Status (RPI), for persons unlawfully in the US.  The status requires residence in the US prior to 12/31/2011 and continuous physical presence since then, and payment of a $500 penalty fee and assessed taxes.  People in RPI status can work for any employer and travel outside the US.  Spouses and children of people in RPI status can be petitioned for as derivatives if in the US.  The status will last for six years initially and can be renewed.  Individuals outside the US previously here are eligible to apply if they were deported for non-criminal reasons and have a qualifying relative.  Persons are ineligible for RPI status if they have aggravated felony convictions, felony convictions, 3 or more misdemeanor convictions and convictions under foreign law. Those who have engaged in unlawful voting and persons inadmissible for criminal, national security, public health, or other morality grounds are also ineligible.

After 10 years in RPI status, a person may adjust to Lawful Permanent Resident Status if certain conditions are met.  People in Dream Act Status (deferred action) and the Agricultural Program can apply for Lawful Permanent Residence after 5 years and DREAM Act kids will be eligible for citizenship immediately after receiving their green cards.

Legal Immigration

The bill makes some major changes to our current system of legal immigration.  The backlog for family and employment-based immigrants is to be adjusted under the bill.  On the family side, the new system will have only two family preference categories covering unmarried adult children/married adult children under 31 and unmarried adult children of lawful permanent residents.  The bill eliminates availability of 4th preference sibling immigrant visas 18 months from enactment.  The bill amends the definition of “immediate relative’ to include a child or spouse of an alien admitted for lawful permanent residence.  The bill eliminates the Diversity Visa Program.

On the employment side, the bill exempts from numerical limitation the derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in any field, and certain physicians.  The bill allocates 40% of the worldwide employment-based immigrant visas for members of the professions holding advanced degrees or their equivalent and aliens holding a Masters in a science, technology, engineering, or mathematics (STEM) field from a US institution of higher education within 5 years and who have an offer of employment in a related field.  The bill also increases the percentage of employment immigrant visas for skilled worker, professionals and other professionals to 40 percent, leaving 10 percent for certain special immigrants and 10 percent for those who foster employment creation.  The bill also creates a startup visa for foreign entrepreneurs seeking to start a business in the US.

The bill also creates a new merit based immigrant visa based on a point system for individuals based on their education, employment length of residence in the US and other considerations.

Employment Verification

The bill makes extensive changes to the requirements for employers to verify that employees are authorized to work.  All employers will eventually be required to use the E-Verify system over a 5 -year phase-in period.  As part of this system, every non-citizen will be required to show a “biometric work authorization card” or “biometric green card” with photographs which will be stored in the E-Verify system.  The bill also indicates USCIS will have a system in place to allow employees to “lock” their Social Security number in the E-Verify system so that it cannot be used by another individual.  USCIS will also be able to investigate whether Social Security numbers are being improperly used multiple times and, if fraud is detected, USCIS can either launch an investigation or lock the Social Security number.  The system will allow all employees to check their own E-Verify history to know if their Social Security number has been improperly used.  Due process requirements are established so that legal workers will not be prevented from working due to system errors or employer negligence or misconduct.

Temporary Visas

The current H-1B nonimmigrant visa system is significantly changed by the bill.  In addition, the bill creates an entirely new category of nonimmigrant visa for lower-skilled workers.

The H-1B visa specialty occupation base cap is raised from 65,000 to 110,000, and the bill increases the number for US advanced degree holders to 25,000 for US graduates in science, technology, engineering and mathematics.  It also provides that in future years the cap can go as high as 180,000 based on a “High Skilled Jobs Demand Index” formula.  The bill also requires employers to pay significantly higher wages for H-1B workers than under current law and requires that employers first advertise the jobs to US workers before hiring an H-1B worker. Spouses of H-1B workers will be provided with work authorization in certain cases.  A 60-day transition period for H-1B workers to change jobs is also established, as is dual intent for foreign students on bachelor’s degree programs or above.  H-1B dependent employers will be required to pay significantly higher wages and fees than normal H-1B employers.   The bill also establishes significant new authorities and penalties to prevent, detect and deter fraud and abuse of the H-1B and L-1 visa systems.

The new nonimmigrant W-Visa program is created for lower-skilled workers to come to the US to perform services or labor for a registered employer in a registered position for shortage occupations.   Persons may be granted W nonimmigrant status for an initial period of three years and can renew the status for additional three year periods.    Spouses and children may accompany W nonimmigrants to the US and will receive employment authorization.  The bill establishes an independent statistical agency called the Bureau of Immigration and Labor Market Research which will play a role in determining the numbers for the annual cap of the new worker visa, declare shortage occupations, expand the list of real world recruitment methods registered employers may use to ensure the choices provided employers do not become outdated.  It will also report on every aspect of the employment immigration system and make yearly recommendation s and reports to Congress on how to make these programs work best for the US economy.

Over the coming months, it is likely that debate around all aspects of this bill will grow and many changes may occur. While this bill is not perfect, it does address many of the issued raised by immigration reform advocates on both sides of the aisle.  If you have any questions about immigration and the new bill, please do not hesitate to contact the attorneys at MMH for further guidance.

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