Last week, a group of eight U.S. senators (“gang of 8”) introduced their 844-page immigration reform bill.  The new proposed immigration law is indeed comprehensive, making fundamental changes to four aspects of the current immigration framework.  Specifically, the bill (1) increases border security, (2) amends foreign nationals’ rights to obtain green cards, (3) increases interior enforcement including the creation of a mandatory employment verification system, and (4) reforms the temporary, nonimmigrant visa programs.

While many will rightfully focus on the fate of approximately 11 million illegal immigrants, the proposed law makes highly significant changes to lawful immigration and temporary visas, which will affect millions of families, employers, employees, students, and many others. Please read this article to learn more about the newly proposed immigration law.

Immigration Reform: Border Security

The new bill kicks off by requiring the U.S. government to meet certain goals in securing the U.S. border with Mexico.  This aspect of immigration reform is so important that the undocumented immigrants in the U.S. cannot begin their path to lawful permanent residency (“green card”) until the government devises and begins to implement a border security strategy.

Not only does the bill propose to spend $6.5 billion on border security, including a fence in certain sectors and increased enforcement personnel on the ground, it also creates a metric for how to actually measure the government’s security success.  Specifically, U.S. government must apprehend and turn back 90% of individuals attempting to enter the U.S. illegally in high-risk sectors of the Southern border. 

Unfortunately, this metric begs the question: how does the government measure its success if the people who have entered the U.S. illegally have avoided all detection in the first place?  Without an adequate way for measuring border security, the U.S. may be spending billions of dollars to little effect.   We will have to wait and see what kind of enforcement plans the administration will put in place.

Immigration Reform: Legalization of Undocumented Immigrants

The immigration reform bill next tackles the problem of approximately 11 million undocumented aliens in the United States.  The bill attempts to walk a tightrope between making it prohibitively difficult to stabilize status and giving an outright “amnesty”.

The bill will not automatically give a green card to all individuals who are out of status.  Instead, individuals in unlawful status will first have to apply for Registered Provisional Immigrant Status (RPI).  Individuals who have been convicted of a felony, three or more misdemeanors, or an offense under foreign law, or have unlawfully voted, will not be eligible for the Registered Provisional Immigrant Status.

Recipients of RPI status will certainly have many of the benefits of green card holders, including the right to travel and return to the United States, as well as the right to work.  Most importantly, they will be permitted to lawfully remain and live in the United States.  Moreover, individuals who have left the United States before December 31, 2011 after being deported, may return to the U.S., provided they are the spouse or a parent of a Untied States citizen or lawful permanent resident.

Despite its significant benefits, the RPI status is not quite the same as full-fledged permanent residency.  For example, PRI status must be renewed after six years.  At this time, the individual will have to prove that he has been paying the requisite taxes and, most importantly, meets employment requirements.  Specifically, the individual must prove that he has been regularly employed throughout the RPI period (with unemployment gaps of no more than 60 days), or that his average income throughout the PRI period is at least equal to the poverty level.  Moreover, individuals who have been granted RPI status will not be eligible for any Federal means-tested public benefit.  Individuals seeking RPI status and an extension of RPI status will have to pay a $1,000 dollar penalty in addition to any application fees.

After ten years in RPI status, a Registered Provisional Immigrant can apply for a green card.  At this point, he will have to prove that for the past ten years he has continuously lived in the United States (with exception of brief and casual trips abroad), has paid all necessary taxes, has regularly worked in the United States, has demonstrated knowledge of Civics and English language, and has paid an additional penalty of $1,000.  Moreover, the bill contains a “back of the line provision”.  That is, before individuals in RPI status can get a green card, all people that are currently waiting for family or employment-based green cards must have had the opportunity to obtain their green cards.

The “legalization” process is more flexible for DREAMers (individuals who were brought into the United States as children) and certain agricultural workers.  DREAMers will be able to receive green cards in 5 years, and can obtain citizenship immediately after obtaining their green cards.

Immigration Reform: Employment and Family Immigration

In addition to fixing the problem of “illegal immigration”, the proposed immigration reform makes substantial changes to the current green card system.  The bill amends family and employment immigration, and eliminates altogether the diversity visa.  Moving forward, there would be three main ways of immigrating to the United States: through family, through employment, or through a new point-based merit system.

In order to come to immigrate to the United States through family, the foreign national must have a specific relationship to a United States citizen or to a green card holder.  The new law would expand the amount of individuals who can come to the United States without having to wait in the infamous, multi-year lines for family-based visas.  Specifically, lawful permanent residents of the United States will now be permitted to sponsor their children and spouses without the extremely long wait times.  Currently, only parents, children and spouses of U.S.citizens get this expedited treatment.

In other ways, however, the new immigration law would limit family-based immigration because, moving forward, married sons and daughters of U.S. citizens, who are over 31 years of age, cannot be sponsored by their U.S. citizen parents. Similarly, U.S. citizens will no longer be able to sponsor their siblings for a green card.

On the employment side, the immigration bill also expands the amount of immigrant visas (green card) available for certain workers.  Individuals who have a Master’s degree or above in science, technology, engineering or mathematics (STEM) from a United States institution, and who have job offers from a United States employer, will be able to get a green card without having to go through the involved labor certification process.  Moreover, there will be no numerical limits on how many green cards will be available to such STEM individuals.  There will also be a visa for foreign individuals who seek to emigrate to the United States to start up their own companies.

In addition to the employment and family based visas, Congress would create a merits-based visa.  That is, each applicant under the merits system will be allocated a certain amount of points based on his or her age, education background, employment history, family ties in the United States, ability to speak English, and other criteria.  The individuals who receive the most points during the particular application period will be granted immigrant visas to the United States.

The elimination of the diversity visa (whereby the U.S. permits individuals from around the world to obtain green cards based on a lottery) is just another example of how the reform bill is seeking to provide for more targeted immigration: valued workers and family members of U.S citizens and lawful permanent residents.

Immigration Reform: Internal Enforcement

The immigration bill should be further applauded for its recognition that unlawful immigration occurs not simply because foreigners think that they can get a better life in the United States, but because U.S. employers are willing to hire them.  Simply increasing enforcement at the border has not worked thus far, and will likely fail in the future.  As such, the new law would create a mandatory system for employers to check whether a particular individual is permitted to legally work in the United States.

The new E-Verify system would be made mandatory under the new immigration law.  As part of this process, every non-U.S. citizen will be required to show his employer a biometric work authorization card, or a biometric green card.  The card will contain the individual’s photograph. That photograph will also be in the E-Verify system for the employer’s verification.  An employer’s failure to comply with verification requirements could result in financial penalties.

Immigration Reform: Temporary Visas

The new immigration bill also seeks to increase the employers’ ability to temporarily hire foreign workers, while at the same time protecting U.S. labor.  Currently, there are approximately 85,000 H-1B visas for foreign professionals whose services are sought by a U.S. employer.  That number is frequently insufficient – this year, for example, the USCIS received approximately 120,000 H-1B applications during the first five days.  The new bill would raise the 85,000 figure to 135,000, with the potential of increasing to 180,000.

While the law would increase the number of available H-1B visas, it would also require U.S. employers seeking to sponsor an H-1B worker to pay significantly higher wages to that H-1B worker than under the present law.  Moreover, the employer will be required to recruit U.S. workers before sponsoring an H-1B worker by posting the position for 30 days on the Department of Labor website. The posting will have to describe in detail the wage range to be offered for the position, the job requirements, and the process of applying for the job.  The employer must offer the job to any U.S. worker applicant who is equally or more qualified than the H-1B worker.  Further, the law will prohibit an employer seeking an H-1B worker from displacing a U.S. worker 90 days before, and 90 days after, beginning the H-1B process.

At the same time, the law provides increased flexibility for family members of the H-1B worker, who will now be given permission to work in the United States.  Moreover, whereas currently an H-1B employee who terminates his job must leave the United States, under the new law H-1B workers will be given 60 days to change their employers.

The immigration law would also add a new visa, the W visa, for certain non-professional, lower skilled, workers.  Specifically, the position cannot be one that requires a bachelor’s degree, or is in certain computer fields.  Such positions will generally be covered by H-1B visas.

While the W visa will be for lower-skilled workers, it would be a flexible one – both for the employer and the employee.  First, unlike the current H-1B system, the employer would be able to terminate the foreign national in W status and hire another foreign national in W status without filing an application with the USCIS.  Similarly, a foreign national in W status can terminate his employment and have an additional 60 days to find another position. 

Similar to the H-1B visa, however, in order to hire workers in W status, the U.S. employer will have to advertise the position and conduct certain recruitment steps to ensure that there are no U.S. workers available for the position.  Thereby, Congress seeks to expand the ability of U.S. employers to hire foreign labor, while ensuring that U.S. workers are ultimately given priority in the hiring process.

The newly proposed immigration law certainly has many significant kinks to work out, and there is no shortage of critics.  Yet, the bill appears to be moving in the right, and bipartisan, direction in beefing up enforcement while expanding and funneling lawful immigration.  Senators will certainly make numerous suggestions and amendments, following the Senate hearings on this bill.  One will hope, however, that the spirit of the bill and much of the substance will make it out of the grueling legislative process.

If you have any questions about the new immigration bill, please do not hesitate to contact the premier Washington DC immigration law firm of Basyuk & Klaproth.  Our immigration lawyers speak English and Russian.

 

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