Senate Immigration Proposal Offers Both Exciting Options And More Regulation For Employers

by Franczek Radelet P.C.
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Last month, the so-called “Gang of Eight” Democratic and Republican Senators released their comprehensive immigration reform bill entitled the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.” The full bill runs 844 pages, but for employers who want to avoid slogging through the dense language, the Senate has released a detailed 17-page outline that helpfully outlines the bill’s main provisions.

Employers who rely on foreign workers should take note of three provisions in particular. The bill increases the number of H-1B visas, creates a new “W” visa for guest workers, and adds an agricultural card for workers. The increased number of H-1B visas comes with additional hurdles for employers, though. The bill would require employers to conduct a test of the labor market and adds some additional protections for foreign workers.  The new provisions are similar to those that appeared in the Department of Labor’s proposed H-2B regulations that a federal court enjoined last year. The “W” visa for guest workers adopts most, but not all, of the provisions that union leaders and the U.S. Chamber of Commerce hammered out in an agreement earlier this month.

Higher education institutions, high-tech employers, and medical researchers will be pleased to see that the bill relaxes many of the restrictions in the current visa patchwork.  The bill proposes to offer essentially unlimited visas to doctoral degree holders in any field; immigrants with extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; and certain physicians.

For undocumented immigrants or foreign nationals who have otherwise overstayed their authorizations, the bill provides a path to legal permanent residence and, ultimately, citizenship by creating a new Registered Provisional Immigrant (RPI) Status.  The new RPI status would require immigrants to show a continuous physical presence in the United States that began before December 31, 2011, to pay a $500 penalty, to pay any back taxes owed, and to pay for the cost of processing the RPI application.  DREAM Act eligible students who were childhood arrivals would be exempt from the penalty.

As expected, the bill also would make the use of an enhanced E-Verify mandatory for all employers. The bill also increases penalties on employers, and gives the Department of Homeland Security (DHS) the ability to refine verification requirements to reduce document fraud and identity theft. Employers would have between two and four years after the bill’s enactment to enroll in and implement the enhanced E-Verify system.

The Senate bill ties the creation of an RPI status to DHS’s success in demonstrably enhancing border security. The bill requires DHS to implement a new border security strategy along the Mexican border, including by adding more border fences, and to improve its technology to track and contact individuals who overstay their authorizations. The RPI elements of the bill are only triggered once DHS demonstrates that it has implemented these changes and that it has reached a 90% “effectiveness rate” on the number of apprehensions and removals of illegal entrants in certain “high risk” areas of the border within the first five years after the bill’s enactment.

The Senate bill’s passage is far from assured, and other Senators may offer additional amendments that change or add to some of the initial provisions. As Congressmen Luis Gutierrez and Paul Ryan discussed recently at the City Club in Chicago, a bipartisan group of Congressmen has been working to release its own immigration reform plan. The House of Representatives will likely differ at least somewhat from the Senate’s version, particularly on the guest worker visa program. The two chambers would need to reconcile any differences without scuttling the tenuous coalition that supported passage. We will continue to update you on the Senate bill’s progress, and discuss some of its key provisions in more detail in the weeks ahead. 

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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.

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