Immigration Reform Proposal : Senate Compromise
Posted May 25, 2007
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On May 17, 2007, an agreement was reached between the Administration and certain senators from both of the major political parties regarding a proposed immigration reform bill. This proposal has drawn a great deal of media attention and is being hotly debated. The proposal itself is extremely lengthy, spanning hundreds of pages. MurthyDotCom and MurthyBulletin readers should keep in mind that the law will not change unless and until legislation is passed by both the Senate and the House of Representatives, and signed by the President. What follows is a summary of the key provisions of the proposed bill. It is important to understand that this legislation still is being debated. The provisions, therefore, are subject to change. Amendments and compromise are part of the legislative process. The changes this piece of legislation would bring about, if enacted in their current form or a variation of their current form, would be sweeping. They ultimately would change the entire immigration system as we now know it.
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Improved Border Security - Effective Date Triggers
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The bill contains various enhancements to border patrol and security. The benefits provisions, which span both temporary immigration categories (nonimmigrant) and permanent (immigrant / green card) provisions, cannot go into effect until certain security measures are met. In addition to direct border security, there are also provisions for workplace enforcement measures and employee verification.
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Border Enforcement
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The bill provides for increased hiring in areas related to border protection, as well as the purchase of technology enhancements. There are numerous other border enforcement provisions, ranging from biometric data improvements to the establishment of various studies and review commissions.
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Interior Enforcement
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Enforcement mechanisms extend beyond the border. The bill provides for an increased number of trial attorneys, USCIS adjudicators, attorneys, judges, and others who are involved in case adjudication. The interior enforcement mechanisms are also lengthy and extensive. They include: increased penalties for gang violence; changes to the definition of aggravated felony; increased penalties related to removal and illegal entry; reform of passport, visa, and immigration fraud offenses; and broader Department of Homeland Security (DHS) authority to cancel visas.
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Employment Verification System
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The proposal rewrites provisions relating to the illegality of knowingly employing undocumented foreign nationals. It has provisions to improve an employer's ability to verify the employee's identity and eligibility to work, and increase penalties for failures on the part of the employer. The government would establish an electronic eligibility verification system, with required employer participation.
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Also included within these provisions are allowances for the sharing of information between the Social Security Administration and the DHS. There are also measures to enhance the security of Social Security cards.
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NONIMMIGRANT PROVISIONS
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New Temporary Worker (Y Visa) Program
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The law would create a new Y visa in the category of temporary visas. This would replace the current H2A and H2B temporary worker programs, and would not go into effect until the enforcement triggers, described above, were satisfied.
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The Y visa would have a maximum admission period of two years, which could be renewed three times. However, the foreign national would have to spend one year out of the U.S. between each two-year period. There are annual numerical limits.
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If family members are joining, the individual must be able to show that s/he has income at 150 percent of the poverty level and has health insurance for the dependants. Persons who overstay this category are permanently barred from admission to the U.S.
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An employer must petition for the Y visa after obtaining a certification of the position from the Department of Labor. This requires recruitment of U.S. workers and payment of the prevailing and/or actual wage, as well as providing the same working conditions as those for U.S. workers. There are also provisions for seasonal agricultural workers.
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Changes for Students include Longer OPT
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The proposal would extend the period of Optional Practical Training (OPT) following graduation to 24 months, from the current 12 months. It would create an F-4 student category for students seeking advanced degrees in math, engineering, technology, or the physical sciences. Some students would be granted dual intent.
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H1B Changes : Increased Numbers
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This provision would increase the H1B cap to 115,000 for Fiscal Year (FY) 2008, and would permit the DHS to set the annual cap at up to 180,000 visas. It would alter the ability to obtain H1B extensions beyond the current six-year limit to some type of one-year extension for merit-based adjustment applicants.
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There are increased requirements that employers would have to meet in terms of non-displacement of U.S. workers and good-faith recruitment attestations. It also would limit the H1B workers permitted to employers with 50 or more employees to 50 percent of their workforce.
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L-1 Changes : Fraud and Abuse Protections
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The proposed law contains changes aimed at L-1 cases for companies establishing new offices in the United States. Such a case can only be approved if the beneficiary has not been the beneficiary of two or more petitions within the past two years. The employer must have an adequate business plan, the necessary office space to carry out the plan, as well as sufficient finances to move forward with the business upon approval of the L-1 petition.
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Conrad Program for J-1 Waivers
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This state program for J-1 waivers for physicians would be made permanent. It would also allow certain states that have used all of their 30 waiver slots to obtain an additional 20 slots in certain circumstances.
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GREEN CARD REFORM
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Family
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The family-based visa numbers would be increased to 567,000 until pre-May 2005 backlogs are eliminated.
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Employment
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The employment category is referred to as "merit." This sets three different worldwide ceiling levels. For the first five years after enactment of the proposal, the level would be set at a number that is believed to be 247,000. Of this number, 90,000 would be set aside for eliminating backlogs and 10,000 set aside for exceptional Y visa holders.
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For the following three or four years (until the first undocumented workers can adjust status), the level would be set at 140,000 with the same set aside for eliminating backlogs. Once undocumented workers can adjust status, the level increases to 380,000. There will be supplemental allocations for these individuals.
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Merit-Based System for Immigrants
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In an enormous revision of the current system, the proposal would do away with the entire employment preference system for EB1, EB2, and EB3, and would replace it with a merit-based point system. Labor certifications would end. In the point-based system, points would be assigned for employment, education, English and civics, and extended-family connections. Important factors for employment include whether the employment is a specialty occupation, a high-demand occupation, or is in the sciences, technology, engineering, or a health-related field. Higher degrees receive higher point values, with extra points for degrees in the sciences, technology, and engineering or health fields.
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Reducing Chain Migration
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Chain migration is the term used for one family member sponsoring the next, until the whole family is in the United States. This proposal would eliminate the following family preference categories: FB1 (adult, unmarried sons and daughters of U.S. citizens), F2B (unmarried sons and daughters over 21 of U.S. permanent residents), FB3 (married sons and daughters of U.S. citizens), and FB4 (brothers and sisters of U.S. citizens). It redefines immediate relatives to exclude parents of U.S. citizens and, instead, would establish a new preference category for parents of U.S. citizens, with an annual limit of only 40,000.
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It also would allocate 440,000 visa numbers for reducing pre-May 2005 family category backlogs.
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Legalization : Z Visa
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In what is a hotly-debated legal issue, the legislation would create a Z nonimmigrant visa category for persons who are in the U.S. in an undocumented status. These individuals would have to show that they have been in the U.S. since January 1, 2007. There are a number of detailed requirements, including payment of penalties. The details of this category will be analyzed more fully, if the legislation progresses. It appears that the goal is to clear out the backlog in both the family and employment categories prior to the time when any Z nonimmigrants would be eligible to obtain permanent residence.
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Conclusion
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Since this legislation is likely to go through many changes, it would not be constructive to provide any detailed analysis at this time. When and if the proposed legislation moves forward and the provisions are finalized, we at the Murthy Law Firm will analyze it for its potential impact on MurthyDotCom and MurthyBulletin readers. Again, it is very important to understand that legislation morphs through amendments and compromises. This is a natural part of the legislative process.