Grant Sovern, Partner

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Newly Introduced Provisions of Senate’s Immigration Bill

Immigration Law Alert Grant Sovern

The group of eight senators has finally released details of their comprehensive immigration reform proposal. While the final proposal is more than 800 pages and contains many details, we have summarized the most important parts of the proposal, highlighting the employment-based provisions. Employers should pay particular attention to sections C (green card changes), D (Mandatory E-Verify), and E (work visa changes).

These proposed provisions are still just part of a bill that was introduced in the Senate. Before becoming law, this proposal must make it through the committee process, debate and approval in both the Senate and the House of Representatives, before being signed by the President. Many changes could be made by any of those government bodies. Q&B will be keeping a very close eye on unfolding events and will provide updates as necessary focusing on business immigration issues. The main provisions of the proposal include the following:

A. Border Security

1. $3 billion allocated for southern border security enhancements.
2. $1.5 billion allocated to build more secure fencing and technology.
3. No undocumented immigrant can get the new Registered Provisional Immigrant ("RPI") status until border security programs approved.
4. Most immigrants with RPI status cannot get permanent resident status (green cards) until Department of Homeland Security can demonstrate 90% effectiveness along the southern border.
5. 3,500 additional Customs and Border Protection officers nationwide.
6. National Guard authorized to help along the southern border.

B. Legalization program for undocumented immigrants - Registered Provisional Immigrant status. This is the proposal to allow currently undocumented immigrants to obtain a provisional status before someday applying for permanent resident status (green card).

1. Must be physically present in the U.S. since December 31, 2011.
2. Pay $500 penalty fee.
3. Ineligible if convicted of: aggravated felony, felony, three or more misdemeanors, foreign law, unlawful voting; or if inadmissible for criminal, national security, public health, or other morality grounds.
4. Will get work authorization and permission to travel in and out of U.S.
5. Includes people outside U.S. who were here before December 31, 2011, who were deported for non-criminal reasons, if they are spouse or parent of U.S. citizen or permanent resident.
6. RPI status will last for six years, and is renewable.
7. Eligible for permanent resident status (green card) after 10 years in RPI status but they must qualify for a green card just like anyone else - there is no special green card program just for undocumented people who have RPI status. They will only be eligible for a green card if they:

a) maintained continuous physical presence in U.S.;
b) paid all taxes;
c) worked regularly in U.S.;
d) demonstrate knowledge of civics and English;
e) all people currently waiting for green cards have finished their process;
f) pay $1000 penalty fee;

C. Permanent resident (green card) changes.

1. Family immigration programs limited from four to two categories.
2. Eliminate the Family Fourth category (siblings of U.S. citizens).
3. Immediate Relative definition amended to include child or spouse of permanent residents.
4. Repeal the Diversity Visa program (green card lottery).
5. EB1 categories exempt from annual green card limits (extraordinary ability, outstanding professors/researchers, multinational executives/managers).
6. Family members, PhD's, and physicians who obtained J-1 waivers are exempt from employment-based annual limits.
7. Business start-up green card created.
8. Points-based green card system created.

a) 120,000 to 250,000 per year.
b) counts education, employment, length of residence in U.S., and others.

D. Mandatory E-Verify for employers.

1. Phased in over five years.
2. Enhanced photo matching tool for:

a) Passports;
b) State driver's licenses;
c) People without photo IDs.
3. Ability for people to lock their social security numbers so no one else can use it.

E. Temporary work visa reforms.

1. H-1B visas for professional-level workers.

a) Raise base cap from 65,000 to 110,000.
b) Based on demand for H-1Bs and unemployment rate, cap could go as high as 180,000.
c) 30-day recruitment period required.
d) Prevailing wage requirements and higher wages for H-1B dependent employers.
e) Spouses of H-1Bs get work authorization if their home country has reciprocal treatment of U.S. workers' spouses.
f) Filing fee increased to $5000 for employers who have between 30% and 50% H-1B or L-1 employees ($10,000 if more than 50%).
g) Employers prohibited from having more than 75% H-1B or L-1 employees in 2014 and down to 50% by 2016.
2. W Visa for lower-skilled workers.

a) Employers must be registered and pay fee.
b) Employees must be registered.
c) New Commissioner will designate shortage positions and regions.
d) Spouses will also receive work authorization.
e) Lasts in three-year increments.
f) Employer must recruit for position for 30 days.
g) Wages must meet prevailing wages as determined by Department of Labor (or actual wages paid, whichever is higher).
h) 20,000 visas available in first year, going to 75,000 by 4th year, after that numbers determined by Commissioner based on unemployment rate.
i) Only 15,000 of those visas may be used by construction workers.
j) Employees free to change employers but may not be leased or treated as independent contractors.

F. Agricultural Worker Programs (AgJOBS) adopted.

1. Current undocumented form workers obtain legal status through Agricultural Card Program if they have made substantial prior commitment to agricultural work in U.S..
2. Must show they have paid all taxes, not convicted of any serious crime, pay $400 fine.
3. Eligible to obtain permanent resident status (green card).
4. New Agricultural Guest Worker program (W-2 and W-3 visas) to replace H-2A program.

For more information on the immigration reform proposal, please contact Grant Sovern at (608) 283-2668 / [email protected] or your Quarles & Brady attorney.

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