How Will the Immigration Reform Proposals Impact Businesses & Employees?

by Scott Legal, P.C.
Contact

Much of the debate surrounding immigration reform has centered around providing a pathway to Citizenship for the 11 million undocumented people in the country.  While a significant part of the legislation is focused on this area, the current Senate proposals are a comprehensive revamp of many aspects of immigration law including modifications that will impact employees and businesses.  This article is a summary of the current immigration reform proposals with a focus on how the proposals will impact businesses and employees.

Changes to Employment Based Green Cards

A number of changes have been proposed to reduce long wait times for some employment based green card categories, and to make a sufficient number of visas available for highly skilled workers that are in high demand in the U.S.. The current immigration system sets a cap on the total number of visas issued by category (EB-1 through EB-5) and then further limits this by country.  For example, country-specific limits on employment-based immigrant visas have caused significant wait times (in excess of 10 years) for some applicants from countries like China and India.  These wait times would be eliminated if the bill becomes law and this will present an opportunity for employment based green cards from applicants from these two and other countries which in the past has been extremely difficult.

The reform proposals also eliminate cap amounts in some other visa categories.  For example, highly skilled and exceptionally talented immigrants are not subject to a cap.  In addition, candidates with advanced degrees in Science, Technology, Engineering & Math (STEM) fields from U.S. universities will also not be subject to the cap.  STEM graduates would also be exempt from the labor certification requirement which would make it much easier for them to get a green card after graduation.

The Creation of New Entrepreneur Visas

Current immigration law has two visas that have been developed to encourage foreign nationals to start a business in the U.S. and hire U.S. workers.  These are the E-2 Investor Visa and the EB-5 Visa.  To find out more about the E-2 visa click here. To find out more about the EB-5 visa click here.  As another attempt to attract foreign investment and create jobs, the bill creates a nonimmigrant investor visa (this is not a green card), or X visa.  The X visa is geared towards entrepreneurs whose businesses have attracted at least $100,000 in investment, or have created three jobs, and generated $250,000 in annual revenue.

The bill also creates an EB-6 immigrant investor visa that leads to a green card. This visa is for entrepreneurs who have a significant ownership in a U.S. business and have had a significant role in the start-up of the business.  In order to qualify for this visa, the business must create five jobs and must have received at least $500,000 funding, or created five jobs and generated $750,000 in annual revenues in the prior two years.  The E-2 and EB-5 Visas will still be available to investors.

Undocumented Workers Will Obtain Work Authorization

Although a violation of tax and immigration law, many employers hire workers “under the table.”  If this bill becomes law, the 11 million undocumented immigrants will be able to apply for Registered Provisional Immigrant (RPI) status, and work authorization, if they have been in the U.S. since December 31, 2011, have not been convicted of a felony or three or more misdemeanors, pay their assessed taxes, pass background checks, and pay a penalty, among other requirements.  As these workers are currently off the books, some employers do not comply with minimum wage and/or other department of labor requirements and the proposals would change this.  Moreover, in order to get RPI status, an undocumented worker would have to pay their back taxes and this would result in them telling both immigration officials and the Internal Revenue Service (IRS) who they had worked for.  This may result in a flood of fines and/or other penalties against employers.  You should note that while some immigration violations are only subject to fines, failure to pay payroll taxes is tax evasion which is a felony.

Introduction of a Merit-Based Program for Green Cards

One widely anticipated feature of the new immigration proposal is that it creates a new merit system that is based on points accrued through education, employment, family ties and other qualifications.  The premise here is that the higher you score, the more chances that you would have to get a green card. This proposal is similar to current legislation in other countries that link permanent residence applications to features such as length of time the person has been in the country, language ability, education and employment.  This could open up job availabilities for highly qualified workers with strong educational backgrounds.

New Visa for Lower Skilled Workers (Agricultural and Non Agricultural)

The current immigration proposals also create a program that allows foreign agricultural workers to enter the U.S. to work for employers designated by the Department of Agriculture. Employers must pay the W workers a wage determined by the department of labor and meet other conditions.  Temporary agricultural workers have been one of the areas where employers and lobby groups have expressed a keen interest in repair as many farm workers rely on seasonal workers.

The bill also creates a new W visa for less-skilled, non-seasonal, nonagricultural workers, such as workers in construction and restaurant industries. The program will be closely monitored and supervised by a new entity, the Bureau of Immigration and Labor Market Research, which will mandate what constitutes a shortage occupation.  Like the agricultural W visa, employers must pay the W workers the actual wage or the prevailing wage for the occupation, and follow other department of labor requirements. As this is a highly controversial area where many feel foreign nationals are taking U.S. jobs, a complaint process will be established to report violations, and penalties will be assessed for abuse.

Employers Will Be Required to Use E-Verify

E-Verify is an internet-based system that allows businesses to check whether or not an employee is lawfully permitted to work in the U.S..  The system is not currently mandatory and as such less than 1% of employers in the U.S. are enrolled in E-Verify.

The new bill expands E-Verify and makes it mandatory for all employers over a period of five years. The bill requires identity verification through the use of enhanced fraud-proof documents to allow employers to verify an individual’s identity.  In addition, a mandatory entry and exit system will be implemented at all air and sea ports to help ensure that foreign nationals are leaving the U.S. when they are supposed to.

Click here for a PDF version.

Also, click here for your free White Paper that summarizes the top 10 Immigration Questions and Answers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Scott Legal, P.C. | Attorney Advertising

Written by:

Scott Legal, P.C.
Contact
more
less

Scott Legal, P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.