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Immigration Reform: What's in the Senate Bill?

Thursday, June 27, 2013   (0 Comments)
Posted by: Tom Delaney, PLANET
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Immigration ReformWASHINGTON, D.C. - On Thursday June 27, the Senate passed comprehensive immigration reform legislation S. 744 by a vote of 68-32.  In a nutshell, here is what the bill would do:

The "Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744) includes provisions on border security, the creation of a new "W-Visa,” a new agricultural guest worker visa program, a mandatory E-verify system, and makes changes to the existing H-2B Program.   The bill would create a path to citizenship for the estimated 11 million individuals living in the US illegally.  It would also provide for 20,000 new Border Patrol agents, requires the completion of 700 miles of fencing and requires an array of high-tech devices be deployed to secure the border with Mexico.

S. 744 would replace the existing H-2A program with a new agricultural worker program and would allow current undocumented farm workers to obtain legal status through an Agricultural Card Program.  The bill would do the following:

  • Workers that have made a substantial prior commitment to agricultural work in the US would be eligible for an Agricultural Card.
  • Workers who have fulfilled future Agricultural Card work requirements in US agricultural, have paid all taxes, have not been convicted of any serious crimes, and pay a $400 fine are eligible to adjust to legal permanent resident status, with spouses and minor children receiving derivative status.
  • A new agricultural guest worker visa program would be created to ensure an adequate agricultural workforce.  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, which would be sunset after the new program is operational. 

The legislation retains the existing H-2B program but makes some minor modifications. The bill would do the following:

  • Exempt H-2B returning workers from the program’s 66,000 annual cap through 2018;Modify the mechanism by which H-2B worker wages are calculated;
  • Require employers to pay incoming and outgoing transportation costs for the H-2B worker, including reasonable subsistence costs during the period of travel;
  • Require the employer to certify and attest that they did not displace and will not displace a US worker employed by the employer in the same metropolitan statistical area within 90 days before the start and end dates of an H-2B worker; and
  • Require employers to pay a new $500 Department of Labor H-2B processing fee in addition to the significant fees already paid.

The legislation would also create a new year round "W-Visa” Program for low-skilled workers. Spouses and minor children of the workers under the program would be allowed to accompany them to the United States and would also be given work authorization for the same period as the W-visa holder. Employers would need to register with the Department of Homeland Security and provide an estimated number of W-visa workers the employer needs. 

The legislation includes reforms to the H-1B visa program for highly skilled workers. The bill does the following:

  • Establishes an H-1B visa (specialty occupation) cap of 110,000 for the fiscal year after the date of enactment of this Act;
  • Establishes a market and unemployment based adjustment mechanism that increases or reduces the annual cap by not more than 10,000, with a minimum floor of 110,000 and a maximum ceiling of 180,000.
  • Limits the exemption from H-1B numerical limitations to STEM occupations and increases the annual STEM allocation to 25,000.
  • Authorizes an H-1B spouse to work if he or she is the national of a country that permits reciprocal employment.
  • Provides deference to prior H-1B or L-visa (intra-company transferee) adjudications involving the same employer and nonimmigrant absent material error, changed circumstances, or new information adversely affecting eligibility.
  • Provides a 60-day lawful status period for an H-1B nonimmigrant whose employment is terminated.
  • Authorizes visa revalidation within the United States for specified nonimmigrant visa categories.
  • Revises provisions regarding complaints against H-1B employers, including: (1) extending the statute of limitations on complaint investigations, (2) increasing fines for specified violations, (3) enhancing whistle-blower protections, and (4) authorizing the Department of Labor to initiate investigations.
  • Directs the Secretary of Labor to establish an H-1B recruitment website.
  • Establishes specified filing fees for H-1B-dependent employers and a fee for premium processing of employment-based immigrant petitions.
  • Increases fees for those applying for green cards as STEM graduates and in turn guarantees those fees will be spent to improve science, technology, engineering, and mathematics education and training in the U.S. Each state will be able to determine how best to spend the new STEM education funds.

Under the bill, all employers would be required to use the E-Verify system over a 5-year phase-in period.

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