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America Dives into Immigration Reform – How Could it Affect Me or My Business

Immigration Law Alert Grant Sovern

While stories concerning proposed comprehensive immigration reform, and related political announcements from a bipartisan group of senators and President Obama, have flooded the news over the past three days, specific proposals have remained limited. Nevertheless, our clients and other friends are understandably interested in knowing how these broad proposals might play out in a potential law that could be enacted this year. Here are some of the practical ways in which these proposals apparently will affect employers and employees in the United States, should they become law:

1. Path to citizenship for 11 million undocumented people currently in the U.S.:

  • There will be increased border security, to a point deemed acceptable to a newly formed commission of governors, attorneys general and community leaders along the Southwest U.S. border, which will authorize the launch of a legalization program for undocumented immigrants.
  • Stronger prohibitions on racial profiling and excessive use of force in immigration enforcement will be included.
  • Immigration authorities will employ an enhanced, existing screening system to track all non-citizens who leave the country, to aid in apprehending visa overstays.
  • Undocumented people will register, then pay any back taxes and a fine to earn a probationary legal status that will allow them to live and work temporarily in the U.S. (People with a serious criminal history will be ineligible.)
  • Once enforcement measures have been completed, those with probationary legal status must pass background checks, pay taxes, learn English and Civics, demonstrate a history of work in the U.S. and have current employment to earn lawful permanent resident status (green card), after all others in the legal pipeline have already earned their green cards.
  • Young undocumented immigrants who were brought to the U.S. by their parents, and those undocumented immigrants working in the U.S. agriculture industry, will be eligible for green cards without fulfilling all of the above criteria.

2. Improvement of the legal immigration system to attract the world's best and brightest:

  • Authorities will reduce the current, long backlogs for people who are legally eligible to immigrate to the U.S. in both the family and employment categories.
  • The government will develop a program to grant permanent resident status (green card) to people who graduate from U.S. universities with a master's or doctoral degree in Science, Technology, Engineering or Mathematics (STEM degrees).

3. Enhancement of employment verification:

  • The government will create an enhanced mandatory E-Verify system that reduces the ability of unauthorized workers to use false documents and increases penalties against employers who knowingly hire undocumented immigrants.
  • The new system must be fast and reliable for employers, and must prevent identity theft.

4. Admitting new workers and protecting workers' rights:

  • The law will allow employers to hire immigrants if employers can demonstrate they were unsuccessful in recruiting an American to fill an open position, without displacing American workers.
  • The Immigration Service will create a program to meet the needs of America's agriculture industry, including dairy, to find workers when Americans are not available to fill open positions.
  • Immigration laws will admit more lower-skilled immigrants when the economy is creating jobs and fewer when it is not.

Some of these provisions are based on programs that already exist, such as E-Verify or PERM Labor Certification, so it is not clear how these would change under the broad proposals. Other provisions would create new programs such as an earned legalization program for the 11 million undocumented people and for future agricultural workers and low-skilled workers. The provisions also provide for the long-awaited increase in the number of immigrant visas (green cards) available, in order to reduce the extremely long waits that qualified legal immigrants currently face, especially those from China, India, Mexico and the Philippines.

The Senators' proposal contained many of the broad provisions proposed by President Obama in May 2011. The President is said to have a much more specific set of proposals that he will hold back as the Senators attempt to draft legislation to pass and propose to the House of Representatives, some of whose members reportedly oppose the earned legalization program.

There was no mention of an increase in H-1B visas or changes to other employment-based nonimmigrant visa programs by these Senators or the President; however, a separate bill to increase the numbers of H-1Bs, based on current market conditions, is being drafted by other members of the Senate. Many think this bill will become part of the overall comprehensive immigration reform package. Other provisions of this bill include work authorization for the spouses of H-1Bs, automatic approval of H-1B and L-1 extensions unless fraud was involved in the initial petition, an increase in H-1B filing fees, visa revalidation inside the U.S. and a 60-day grace period for H-1B beneficiaries after employment termination.

We will continue to monitor more specific provisions as they emerge. If you have questions currently about ways to obtain immigration status for people to work in the U.S., please contact your Quarles & Brady attorney or someone from the Business Immigration Group.

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