View Full Version : The Senate Immigration Reform Bill: Key Issues

05-31-2007, 12:59 PM
The United States Senate agreed to proceed with debate on S. 1348, the comprehensive immigration reform package introduced on May 21 by Senators Edward Kennedy (D-MA) and Jon Kyl (R-AZ). The bill proposes substantial changes to both the immigrant and nonimmigrant visa systems, as well as an overhaul of the employment eligibility verification and worksite enforcement program. Principal proposals include:
The replacement of the employment-based immigrant visa program and part of the family migration program with a new points-based merit system.
An initial increase in immigrant visa numbers, which is intended to reduce the lengthy backlogs that have developed in the green card queue. This increase would primarily benefit the family immigration backlog, but is also intended to reduce the employment-based backlog.
The elimination of several preference categories for foreign nationals seeking to immigrate on the basis of a family relationship and an eventual, and substantial, reduction in the family-based immigrant quota.
An increase in the annual cap for H-1B workers, together with more stringent eligibility requirements and employer obligations pertaining to the H-1B program, as well as a substantially increased H-1B training and education fee.
An overhaul of the temporary worker program.
Introduction of a wide-ranging electronic employment eligibility system, as well as more stringent worksite compliance requirements.
A new Z nonimmigrant category that would allow undocumented immigrants to regularize their U.S. immigration status and eventually apply for permanent residence.
Introduction of "trigger" provisions, which would require border security and enforcement improvements to be implemented before many of the substantive provisions of the legislation could take effect.

Numerous amendments to the bill have been introduced in the last several days, some of which have been passed and incorporated into the legislation and others of which remain pending. The Senate has recessed for the Memorial Day holiday week, and no further votes on amendments will take place in the short term, but it should be noted that the text of the bill remains fluid, with additional changes possible in the coming weeks. This alert summarizes the most important employment-related components of the bill.

Creation of a Merit-Based Immigration System

Perhaps the most sweeping change proposed by S. 1348 is the replacement of the current employment-based immigrant system with a points-based merit system. Our present system is based largely on employers' sponsorship of foreign nationals and is primarily keyed to job offers from U.S. employers, preceded by tests of the labor market to determine whether qualified U.S. workers are available to fill open positions. The Senate bill would eliminate the employer sponsorship and labor certification requirements, and would instead allocate immigrant visas on the basis of a foreign national's score on a points assessment that measures applicants against several criteria, including educational background, age, occupation, family ties to a U.S. citizen or lawful permanent resident, and knowledge of the English language and U.S. civics. Applicants would not be required to have a job offer from a U.S. employer; rather, a job offer would be reduced to one factor among many on the points assessment. The merit system as initially proposed does not contain provisions to recognize some of the most highly sought-after foreign nationals, including individuals of extraordinary ability, outstanding professors and researchers and multinational managers and executives, though a recently proposed amendment to the bill, discussed below, would establish immigrant categories for these types of workers.

Reorganization of the Family-Based Immigration System

The Senate bill proposes dramatic changes to the family-based immigration system. S. 1348 would in the short term increase the visa quota for family immigration in order to reduce existing backlogs (discussed below), but would also reorganize the family preference categories, sharply reducing the types of family members eligible for sponsorship. Spouses and children of U.S. citizens would continue to be recognized as immediate relatives, and would continue to be able to immigrate without the need to wait for the availability of an immigrant visa. However, a large portion of the current family system would be displaced by the merit system discussed above. The Senate bill would reduce the family preference categories to two: (1) a new category for parents of U.S. citizens (who would no longer be recognized as immediate relatives); and (2) the existing preference category for spouses and children of lawful permanent residents and U.S. noncitizen nationals. The existing preference categories for children age 21 and older and for siblings would be eliminated. Instead, ineligible family members would be subject to the merit-based system, which would recognize family ties to U.S. citizens and lawful permanent residents as one factor in a larger evaluation of applicants' attributes.

Reallocation of Immigrant Visa Numbers

Immigrant visa quotas would be substantially realigned under S. 1348. Our current law provides for a baseline annual quota of 140,000 immigrant visas for foreign nationals immigrating on the basis of employment. In the past several years, a backlog has developed in several employment-based immigrant categories, with multiyear waits for some prospective immigrant workers. The Senate bill would, in the first five years after enactment, increase the quota for merit-based and employment-based cases, in part to address existing backlogs. An estimated 247,000 numbers would be available for work-related immigration. Beginning in the sixth fiscal year after enactment, however, the quota would drop to 140,000 numbers per year. This level would remain in place for at least two years, until approximately the eighth year after enactment, when the quota would rise to a baseline of 380,000 per year, with additional numbers made available for previously undocumented immigrants who become eligible to apply for permanent residence.

The bill would also realign quotas for family-sponsored immigrants. Visa quotas for family-based immigration are currently set at a baseline of 480,000 per year and are subject to very lengthy backlogs, ranging from five to upwards of 20 years for some family categories. The Senate bill would initially increase visa numbers by more than 100,000 per year in order to reduce the family backlog; however, after the conclusion of backlog reduction efforts, the family-based quota would fall to 127,000 per year.

Changes to the H-1B Program

S. 1348 would make significant changes to the H-1B category, providing some increases to the annual cap, but imposing more stringent eligibility requirements and heavier compliance obligations on employers. Proposed changes include:

Cap increases. The bill proposes to increase the H-1B cap to an annual baseline of 115,000 numbers per year. The bill would also introduce market-based increases to the cap, known as market escalators, which would provide for additional cap numbers in a given fiscal year based on demand, up to a maximum total of 180,000 numbers per year. For example, if the H-1B cap were reached in the first half of a given fiscal year, the cap would increase for the remainder of the year by 15% of the baseline quota and would be similarly increased by 15% for the following fiscal year. Slightly different formulas would apply if the cap were reached in the latter half of a fiscal year. The bill would also restore the 6,800 cap numbers that are currently set aside for Singaporean and Chilean professionals in the H-1B1 category.

Elimination of ability to qualify on the basis of experience. The bill would require an H-1B worker to possess a bachelor's degree in the specialty in which he or she will work, eliminating the ability of a foreign national to qualify on the basis of experience in lieu of a degree.

H-1B fee increase to $5,000. An amendment to the bill proposes to increase the H-1B education and training fee from the current level of $1,500 to $5,000.

05-31-2007, 12:59 PM
Increased employer obligations. The bill would impose stringent new requirements on all H-1B employers. Under current law, employers who are deemed to be H-1B dependent i.e., employers with more than 15% of their workforce comprised of H-1B workers and employers who have violated labor requirements are required to attest that they have not displaced U.S. workers in the hiring of an H-1B employer and that they have attempted to recruit U.S. workers for open positions. The Senate bill would extend these requirements to all H-1B employers (though a proposed amendment to the bill, discussed below, would dispense with the broadening of the attestation requirements). In addition, employers would be subject to outplacement restrictions, which would limit their ability to place H-1B workers at client sites.

Increased government audits, investigations and penalties. The bill would expand the Department of Labor's authority to investigate matters related to labor condition application (LCA) compliance, and would authorize DOL to conduct annual audits of at least one percent of all H-1B employers in a given year. Penalties for LCA violations would be doubled.

Impact on permanent residence. The bill's impact on an H-1B nonimmigrant's ability to apply for permanent residence is unclear. Under current law, both H and L nomimmigrants benefit from the "dual intent" doctrine, which allows these foreign nationals to pursue immigrant visas without jeopardizing their nonimmigrant status. The Senate bill would eliminate certain facets of the dual intent doctrine, but would continue to allow H nonimmigrants to seek extensions of their nonimmigrant stay past the six-year limitation if they are the beneficiaries of a pending merit-based immigrant petition.

Additional Requirements for the L-1 Visa Category

The bill would impose increased requirements and restrictions on L-1 petitions filed on behalf of foreign nationals entering the United States to establish a new office. New office petitions would be required to be supported by detailed business plans and evidence of sufficient funds and physical premises adequate for operation of the office, and would be approved for an initial period of no more than 12 months. L-2 spouses of new office intracompany transferees would be ineligible for employment authorization during the initial 12 months. In addition, the bill would authorize the Department of Homeland Security to conduct audits of at least one percent of all L-1 employers in a given year, and employers who fail to comply with the requirements of the L-1 program would be subject to penalties and debarment.

Changes to the F Student Visa Program

Some favorable changes are proposed for the F student visa category. The bill would increase the optional practical training (OPT) period from the current 12 months to 24 months, and would increase off-campus employment opportunities for students, subject to wage and recruitment requirements. A new F-4 student visa category would be created for foreign nationals pursuing advanced degrees in mathematics, engineering, information technology or natural sciences, and these individuals would be eligible to pursue permanent residence without jeopardizing their nonimmigrant status.

Revamped Temporary Worker Program

S. 1348 would create a new Y nonimmigrant temporary worker category, which would ultimately incorporate the existing H-2A agricultural worker program and the H-2B nonagricultural worker programs and re-designate those programs as Y-2A and Y-2B, with substantially increased quotas. The bill would also create a new Y-1 category, which would permit the admission of up to 200,000 temporary nonagricultural workers for initial periods of up to two years, subject to recruitment and wage requirements. Y-1 nonimmigrants would be eligible for two additional two-year periods of stay, though they would be required to depart the United States for at least 12 months abroad between periods of stay. Y-1 nonimmigrants accompanied or joined by dependents would be limited to two two-year periods of stay, and would be subject to income requirements and limitations on stay for family members. The Y-2B category would admit up to 100,000 temporary nonagricultural workers for non-renewable periods of stay of 10 months. The Y nonimmigrant category would not take effect until certain border security and enforcement programs are instituted. Until implementation of the Y program, the bill would retain the current temporary worker programs, but the H-2A category would be subject to additional employer obligations.

Worksite Enforcement and Employment Eligibility Verification

Under current law, employers are required to verify the eligibility of all new hires by examining documents that establish a worker's identity and employment authorization and to make attestations of compliance on Form I-9. In addition, employers may currently elect to participate on a voluntary basis in the Basic Pilot Program, an electronic system that verifies workers' employment authorization against government databases.

The Senate bill would retain the I-9 attestation system, but would reduce the number of documents that a foreign national could use to demonstrate identity and employment authorization. The bill would also substantially increase employers' record retention obligations from the current three-year maximum to seven years. In addition, the proposal would essentially expand the Basic Pilot program, requiring all employers to participate in an electronic eligibility verification system that would be phased in for new hires within 18 months after enactment. Within three years of enactment, employers would be required to use the system to re-verify the employment eligibility of all employees an estimated 145 million workers. The bill would also impose substantially higher penalties for worksite violations.

Regularization Program for Undocumented Immigrants

S. 1348 aims to resolve the status of the undocumented population by introducing a new Z nonimmigrant visa category that would permit eligible undocumented workers and their family members to regularize their status and eventually apply for permanent residence. Z nonimmigrants would be granted an initial period of stay of four years, renewable indefinitely in four-year increments. These individuals would ultimately be eligible to apply for permanent residence during a five-year period after immigrant visa backlogs in the family and employment categories are eliminated. To obtain permanent residence, Z nonimmigrants would be subject to a merit-based points evaluation that would assess their U.S. employment history, home ownership, medical insurance and other criteria. They would also be required to depart the United States and return to their home countries (or "touch back") in order to establish eligibility for permanent residence.

Proposed Amendments to the Senate Bill

Late last week, Senators Maria Cantwell (D-WA), John Cornyn (R-TX), Patrick Leahy (D-VT) and Orrin Hatch (R-UT) announced an amendment to the Senate bill that would make important changes to several of the employment-related provisions of the Senate bill. With respect to immigrant visas, the amendment would restructure the proposed merit-based program to add several of the features of the current employment-based system. The amendment would add an employer sponsorship component, and would create programs equivalent to the first, second and third employment-based preference categories for foreign nationals of extraordinary ability, outstanding professors and researchers, multinational executives and managers, advanced degree professionals, foreign nationals of exceptional ability, and professional workers (though the amendment would not provide for an equivalent to the current "other worker" subcategory). The amendment would also restore the labor certification requirement for the second and third employment-based preference categories, but would not provide for a national interest waiver of the requirement. In addition, the amendment proposes an additional 140,000 immigrant visa numbers for employer-sponsored merit immigrants, and would create a quota exemption for certain highly skilled immigrants who have at least three years of U.S. work experience. Regarding the H-1B program, the amendment would eliminate the 20,000 ceiling on cap exemptions for foreign nationals holding advanced degrees from U.S. universities and create a new exemption for foreign nationals holding foreign advanced degrees in the sciences, technology, engineering or mathematics. The amendment would also dispense with the Senate bill's expansion of the recruitment and non-displacement attestation requirement to all H-1B employers.

05-31-2007, 01:19 PM
Is this a summary of the bill?

Or is this an extract from an article? If yes, then please post the url of the article.

Or has this been taken from some other web site? If yes, then please post the url of the article.

05-31-2007, 01:28 PM
Here is the URL: http://pubweb.fdbl.com/news1.nsf/9abe5d703b986cff86256e310080943a/9c1274840ebee3c3852572eb006fde98?OpenDocument

Is this a summary of the bill?

Or is this an extract from an article? If yes, then please post the url of the article.

Or has this been taken from some other web site? If yes, then please post the url of the article.

05-31-2007, 01:30 PM

Close this thread please .. We have another thread that has this news.

05-31-2007, 01:59 PM
I did not find an option to close. Sorry about that. Could you please go ahead and close it for me or let me know how to close a thread.