Global Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Immigration Counsel

On November 29 the House of Representatives voted overwhelmingly in favor of passing the Fairness for High-Skilled Immigrants Act (H.R. 3012), bipartisan legislation that would abolish the per-country numerical limits on employment-based immigrant visas. Introduced by Rep. Jason Chaffetz (R-UT) on September 22 and approved by a vote of 389-15, the measure would incrementally change the current system, whereby the annual number of employment-based immigrant visas allocated to natives of any single foreign country cannot exceed 7 percent of the total number of such visas issued that year. To learn more about the bill and its potential implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update. 

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By Shin-I Lowe

On November 12, 2011, while meeting in Honolulu with Asia-Pacific Economic Cooperation (APEC) leaders, President Obama signed the APEC Business Travel Card (ABTC) Act, which will expedite travel in the Asia-Pacific region for qualified American travelers. Under the Act, U.S. Customs and Border Protection is authorized to issue the ABTC to U.S. citizens as part of its Global Entry program. Cardholders will receive expedited scheduling of visa interviews and access to fast-track immigration lanes at airports in APEC's 21 economies.

The Act, which unanimously passed Congress earlier this month, allows U.S. business people to apply for the cards for reciprocal rights in the region. Cardholders will have pre-cleared immigration entry into the 18 fully participating member economies, eliminating the cost and time involved in obtaining visas. Cardholders also will benefit from expedited transit through special fast-track lanes at major airports and seaports in all 21 economies.

An APEC press release cited business leaders’ praise of the development as a “clear signal” that the United States is helping businesses as they seek stronger trade ties in the Asia-Pacific region.

Photo credit: Official White House Photo by Pete Souza
 

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Rep. Joe Heck (R–NV) has introduced the Welcoming Business Travelers and Tourists to America Act of 2011 (H.R. 3039), which would increase fees imposed on travelers entering the United States as a method of speeding up the processing of travel document applications. The revenue from increased fees would fund State Department staffing increases designed to streamline and accelerate visa processing, thereby increasing tourism into the United States. Highlights of H.R. 3039 include the following:

• The State Department must set a visa processing standard of 12 or fewer calendar days at U.S diplomatic or consular missions in Brazil, India and China, and increase staffing levels.
• The State Department must conduct a two-year pilot program on using secure, remote video-conferencing technology to conduct visa application interviews.
• The Secretary of State would be permitted to modify or enter into agreements with certain countries to allow for longer visa validity periods.

According to the bill’s legislative findings, over the past decade the United States lost the opportunity to generate $606 billion in revenue through tourism. Moreover, increasing tourism by shortening the nonimmigrant visa approval timeline could permit an additional 98 million visitors, create 1.3 million jobs, and generate $859 billion in U.S. economic output between 2015 and 2020. Additionally, the findings contend that removing these barriers will benefit U.S. diplomatic relations.

Photo credit: Dx73

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Currently, the Immigration and Nationality Act permits the issuance of approximately 140,000 employment-based visas each year. The percentage of available visas that may be awarded to nationals of any one country is capped, i.e., visas issued to individuals of one country cannot exceed 7% of the total number of visas available.

Under the Fairness for High-Skilled Immigrants Act (H.R. 3012), introduced by Rep. Jason Chaffetz (R–UT), the per-country limitation for employment-based visas would be removed. Additionally, the following transitional rules would apply to employment-based visas:

• Fiscal Year (FY) 2012 (Oct. 1, 2011-Sept. 30, 2012): 15% of visas would be allocated to immigrants who are natives of a foreign state or dependent area that was not one of the two countries with the largest numbers of natives obtaining permanent resident status during FY 2010.
• FY 2013: 10% of visas would be allocated to immigrants who are natives of a foreign state or dependent area that was not one of the two countries with the largest numbers of natives obtaining permanent resident status during FY 2011.
• FY 2014: 10% of visas would be allocated to immigrants who are natives of a foreign state or dependent area that was not one of the two countries with the largest numbers of natives obtaining permanent resident status during FY 2012.

Additionally, H.R. 3012 increases, from 7 to 15% of the total number of available visas, the per-country restrictions for family-sponsored immigrants.

The bill has been referred to the House Judiciary Committee’s Subcommittee on Immigration Policy and Enforcement.

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As reported by the Wall Street Journal, the Legal Workforce Act (H.R. 2885) (pdf), which would require that employers use E-Verify to authenticate individuals’ legal work status, has produced one of the more unusual opposition coalitions, given the current political climate: conservative, tea-party, libertarian and liberal groups all oppose the measure. The groups have voiced their opposition in letters to lawmakers, and one group took an ad out on Politico, a multimedia news outlet covering politics.

On September 21, 2011, the House Judiciary Committee approved the bill, which was sponsored by Judiciary Chairman Lamar Smith (R-TX). Rep. Smith had previously called on President Obama to include a similar provision in the American Jobs Act.

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Representative Lamar Smith (R–TX) has called on President Obama to include in the American Jobs Act a provision mandating that employers use E-Verify, the electronic employment authorization program. Responding to Obama’s September 8, 2011, jobs speech, Smith stated: “[I]f President Obama is indeed focused on putting 23 million unemployed or underemployed Americans back to work, there is one element that is missing from his jobs plan: a federal E-Verify requirement. This is one of the best options available to put unemployed Americans back to work.” The E-Verify program has been criticized by many, including Obama, for problems with its accuracy.

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The Security and Fairness Enhancement for America Act (H.R. 704), which would eliminate the Diversity Visa Lottery Program, passed out of the House Judiciary Committee on July 21, 2011, by a vote of 19 to 11. The bill, also known as the SAFE for America Act, was introduced in February 2011 by Rep. Bob Goodlatte (R–VA).

The Diversity Visa Lottery Program makes available 55,000 visas annually. Applicants register for the Diversity Visa lottery, and visa recipients are selected randomly from entries that meet eligibility requirements. This year’s lottery made headlines when, due to a computer coding error, most of the winners were selected from among those who applied in the first two days of the 30-day application period, denying the other applicants an equal chance of being selected. The initial results were voided and a second drawing was held.

Photo credit: David Franklin

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The same day a mandatory E-Verify bill was introduced in the House of Representatives, Sen. Charles Grassley (R-IA) introduced the Accountability Through Electronic Verification Act (S. 1196) in the Senate. Like the House employment immigration bill, the Senate version would require all employers to use the E-Verify electronic employment verification system, increase employer penalties for violations of immigration law, and eliminate the current Form I-9 process. The Senate bill, however, would also require a shorter implementation timeframe for using E-Verify and expand its use, among other differences. To learn more about the bills and their implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update.

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A bill that would expand the E-Verify employment verification system and require its use by all employers was reintroduced in the House on May 26. Introduced by Rep. Health Shuler (D-NC) and cosponsored by 37 others, the bipartisan Secure America through Verification and Enforcement (SAVE) Act (H.R. 2000) would create a four-year phase-in period during which all employers would eventually be required to use E-Verify to check the employment eligibility of their potential and current hires. To learn more about the bill and its implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update blog.

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Rep. Sue Wilkins Myrick (R-NC) has reintroduced legislation that would amend the Immigration and Nationality Act to substantially increase employer penalties for violations. The 10k Run for the Border Act (H.R. 1698) would increase the fines for knowingly hiring or recruiting an undocumented worker, or continuing to employ an illegal alien when the employee’s legal status changes or becomes known.

Under the terms of this bill, an employer could be fined between $10,000 and $80,000 for each violation, an increase from the current $250-$2,000 penalty range. For an employer with a prior violation, the penalties would be increased to between $80,000 and $200,000, up from $2,000 to $5,000 per violation under current law. For a repeat offender, the fine skyrockets to a range of $120,000 to $1.6 million. The current fine for such a repeat offense is a minimum penalty of $3,000 and a maximum of $10,000.

If state or local law enforcement officials provide material assistance in investigating or prosecuting employers that are in violation of this law, they are entitled to 80 percent of the fines paid by those employers. It follows that such large financial incentives would increase enforcement.

The provisions of this amendment would take effect on the day of enactment. Prior versions of this bill have been introduced within the past six years, but have failed to advance.

Photo credit: Kameleon007

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On February 14, Senator Orrin Hatch (R-UT) re-introduced the “Strengthening Our Commitment to Legal Immigration and America’s Security Act” (S. 332). Senator Hatch first introduced this bill on September 29, 2010, but it died in committee. The current bill has been referred to the Senate Judiciary Committee. As outlined in our report of the bill’s initial introduction, Senator Hatch’s bill includes a long list of immigration enforcement provisions, such as requiring the IRS to notify Social Security number holders if the agency suspects fraudulent use of their number for employment verification purposes.

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Less than one month into the new session, the 112th Congress continues to introduce labor and employment-related bills at a rapid pace, including proposals relating to immigration. Representative Jeff Flake (R-AZ) re-introduced the Stopping Trained in America Ph.D.s From Leaving the Economy (STAPLE) Act of 2011 (H.R. 399), a bill that would exempt from visa quotas foreign students who have earned a Ph.D. degree in science, technology, engineering, or mathematics from a U.S. university and have a job offer in the United States. Senator Harry Reid (D-NV) introduced the Reform America's Broken Immigration System Act (S. 6), which calls for no specific reforms, but rather declares certain immigration-related goals. To learn more about the bills and their potential implications for employers, please continue reading at Littler's Washington D.C. Employment Law Update blog.

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On January 5, four Republican Congressmen, along with 26 co-sponsors, introduced H.R. 140, the Birthright Citizenship Act of 2011. This bill would amend the Immigration and Nationality Act’s birthright citizenship requirements (8 U.S.C. § 1401) so that individuals born in the United States will be granted citizenship only if at least one parent is:

• a U.S. citizen or national;
• a lawful U.S. permanent resident; or
• an alien performing active service in the armed forces.

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On January 2, 2011, President Obama signed H.R. 847, known as the James Zadroga 9/11 Health and Compensation Act of 2010, which provides medical monitoring and treatment for 9/11 first responders. The law will be financed in part by extending the period during which increased application fees for L and H-1B visas will be collected from certain employers. As discussed previously, application fees increased for certain employers by $2,250 (L visas) and $2,000 (H-1B visas) to fund a border protection bill enacted in August 2010. This increase, which was to expire on September 30, 2014, now expires on September 30, 2015.

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Despite no significant legislative advances concerning immigration during his first two years in office, and an upcoming legislative session with a Republican majority in the House and increased Republican presence in the Senate, President Obama told the Congressional Hispanic Caucus that he will continue to push for comprehensive immigration reform in 2011, reports Politico. Though the gesture was welcomed by caucus members, it remains uncertain whether Obama will find similar support in his own party given that many new, incoming legislators are veering to the right politically and pushing for more typically conservative initiatives like increased border control and enforcement. The President’s pledge came shortly after the Development, Relief and Education for Alien Minors Act (DREAM Act), which would have provided six years of conditional permanent residency to certain undocumented minors who have completed high school and then join the military or attend college for at least two years, failed to garner sufficient Senate votes to overcome a Republican filibuster.

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On December 18, 2010, a cloture motion fell five votes short of the 60 required to break a Republican filibuster of the Development, Relief and Education for Alien Minors Act (DREAM Act). On December 8, the House of Representatives had voted 216 to 198 in favor of the measure, but the Senate vote (55 to 41) effectively killed the measure for this legislative session.

The DREAM Act’s future remains uncertain because Republicans, who mostly oppose the measure, will have a majority in the House of Representatives and a stronger presence in the Senate in the forthcoming 112th Congress. Some supporters of the DREAM Act, however, were encouraged by the measure receiving majority backing in the Senate, including three yea votes from Republicans [Bennett (UT); Lugar (IN); Murkowski (AK)]. The New York Times reports that Democrats hope to revisit the measure next session, believing bipartisan cooperation on the issue is possible. 

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The Fresno Bee reports that some employers, particularly within the agriculture industry, will not use E-Verify, the federal electronic employment verification system, to authenticate new hires’ legal work status. Relying on figures provided by the federal government, the paper states that “[o]ut of thousands of businesses in Fresno, for example, only 179 use the program… although those numbers don't account for businesses that contract with personnel companies using the program.” Businesses cite two main reasons for their non-participation in E-Verify: (1) administrative burden; and (2) a shortage of available legal workers.

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President Obama, along with Senator Robert Menendez (D–NJ) and Representatives Luis Gutierrez (D–IL) and Nydia Velazquez (D–NY), is pushing for a vote this year on the Development, Relief and Education for Alien Minors Act (DREAM Act), The Wall Street Journal reports. The president has agreed to make calls to Republican lawmakers seeking support for the legislation.

Given the administration’s past lack of success in advancing immigration legislation, coupled with strong opposition from Republicans (some of whom oppose the path to citizenship the Act creates), many doubt whether this effort will gather enough votes to advance the bill. Supporters, however, believe that passage of the Act, compared to comprehensive reform, may be possible.

The DREAM Act (S. 729), which Senator Dick Durbin (D–IL) introduced in March 2009, has remained idle in the Senate Judiciary Committee. Prior Senate votes on bills onto which legislators hoped to attach the DREAM Act have failed. As previously reported here, Senate Majority Leader Harry Reid unsuccessfully attempted to attach the Act to a defense spending bill on September 21, 2010. One week later, Senators Menendez and Leahy (D–VT) incorporated the Act into their comprehensive immigration reform bill (S. 3932), which, like the DREAM Act, remains in committee.

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On September 29, 2010, Senator Orrin Hatch (R–UT) introduced the “Strengthening Our Commitment to Legal Immigration and America’s Security Act” (S.3901) (pdf). The bill is the third notable piece of immigration legislation introduced last week, together with the comprehensive immigration reform bill introduced by Senators Menendez and Leahy, and Senator Chambliss’ HARVEST Act (relating to agricultural workers). Senator Hatch’s bill addresses numerous immigration enforcement topics, and notable provisions include:

• Illegal aliens could only be paroled or granted deferred action on a case-by-case basis (for urgent humanitarian reasons or significant public benefit). Mass paroles and deferrals would be prohibited.
• Any state, county, city, or township that is eligible to participate in the Secure Communities program or to cross-designate local law enforcement officers to perform immigration law enforcement functions under section 287(g) (pdf) and does not participate in such programs may not receive compensation for incarceration expenses of illegal aliens.
• Individuals known or reasonably believed to be members of a known criminal organization regularly engaged in transnational criminal activity would be ineligible for visas.
• Elimination of the Diversity Visa Program, unless Congress signs off on changes designed to combat fraud and eliminate abuse in the program.
• Annual reporting by the Secretary of Health and Human Services on welfare benefits provided to states, and the portion thereof provided to illegal immigrants.
• Limiting states’ expansion of the Children’s Health Insurance Program (CHIP) coverage to noncitizen children or noncitizen pregnant women.
• Requiring the IRS to notify Social Security number holders if the agency suspects fraudulent use of their number for employment verification purposes.

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Senator Saxby Chambliss (R–GA) has introduced S. 3912, “The Helping Agriculture Receive Verifiable Employees Securely & Temporarily Act of 2010” (“HARVEST Act”). The HARVEST Act aims to provide a non-amnesty option for temporary agricultural workers, streamline the H-2A temporary worker program, and discourage the hiring of undocumented workers. Additionally, according to Senator Chambliss, the bill would:

• provide a mechanism for addressing the presence of undocumented workers on farms without providing a new path to citizenship;
• ensure that U.S. nationals’ jobs are protected; 
• require the U.S. Department of Labor to increase random audits and investigations of H-2A employers;
• limit the duration of a foreign worker’s continuous stay in the United States without returning to his or her home country;
• require H-2A employers to verify hired agricultural workers’ eligibility; and
• ensure that the H-2A program works for agricultural employers with year-round operations.

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On September 29, 2010, Senators Robert Menendez (D–NJ) and Patrick Leahy (D–VT) introduced “The Comprehensive Immigration Reform Act of 2010” (S. 3932). According to Senator Menendez, the bill “addresses long-standing, wide-ranging flaws in the immigration system that have been priorities of groups on each side of the immigration reform debate.” The bill was introduced shortly before Congress adjourned for its mid-term election recess. As reported by The Hill, Senator Menendez defended his timing for introducing the bill by stating that it could lead to possible “lame-duck movement” on the legislation, and in the longer term it serves as an "invitation to bring Republican colleagues to discussion" on immigration reform.

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On September 21, 2010, a cloture motion on the National Defense Authorization Act for Fiscal Year 2011 (S. 3454) fell four votes shy of the 60 required to advance the measure in the Senate. Senate Majority Leader Harry Reid (D–NV) intended to include the Development, Relief and Education for Alien Minors Act (DREAM Act) (S. 729) as an amendment to the bill. Also included in the defense bill was a provision to repeal the U.S. military’s “don’t ask, don’t tell” policy.

The DREAM Act is supported by President Obama, various business groups and the AFL-CIO. The Act would provide six years of conditional permanent residency to certain undocumented minors who have completed high school and go on to join the military or attend college for at least two years.

All Republican senators—save for Lisa Murkowski (R-AK), who did not vote—voted against the motion. Two Democrats, Senators Blanche Lincoln (D-NE) and Mark Pryor (D-NV), also cast votes against the motion. As a procedural safeguard, Senator Reid cast a “no” vote in order to retain the right to bring the motion up for vote again.

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Senator Jeff Merkley (D–OR), who has been working with Sen. Charles Schumer (D-NY) on a comprehensive immigration bill, does not expect action on immigration reform this year, according to The Hill. The senator’s statement exemplifies the on-again, off-again relationship that legislators have with immigration reform. Below is a brief recap of comprehensive immigration reform developments so far in 2010:

• February: Although immigration reform was a staple of President Obama’s campaign and early-term rhetoric, his State of the Union Address contained only one sentence on the topic.
• March: Senators Schumer and Lindsey Graham (R–SC) unveiled their “blueprint” for comprehensive reform.
• April: Senate Majority Leader Harry Reid (D–NV) predicted that the issue would not be addressed until after Memorial Day.
• June: President Obama urged Republicans to work with Democrats to pass a bill.
• July: In a keynote speech at American University’s School of International Service, President Obama pressed for immigration reform.
• August: A spokesperson for Senator Dick Durbin (D–IL), who introduced the Development, Relief and Education for Alien Minors Act (the "DREAM Act") (pdf), legislation to help students who immigrated to the U.S. as children obtain citizenship, reportedly said that comprehensive immigration reform is still possible in 2010.

Meanwhile, some state and local governments have attempted to fill the void they believe is created by federal inactivity on immigration reform, with Arizona attracting the most attention.

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Computerworld reports that the United States government is reviewing whether the recently-enacted border security law, funded through increased H-1B and L-1 visa application fees for certain foreign-owned companies, runs afoul of World Trade Organization rules, as the law’s opponents and India’s Commerce Secretary contend. However, the issue was only briefly addressed in a recent U.S. Department of State press briefing during which a spokesperson confirmed that discussions about the law were being held between U.S. and Indian officials. Some suggest that the law could increase Indian companies’ U.S. operating costs by $250 million per year.

In a separate article, Computerworld reports that the law has caused rare consensus among H-1B visa advocates and opponents. Individuals on both sides contend that the bill will not create IT jobs for Americans. They suggest that targeted companies—foreign entities operating in the U.S. whose workforce is 50% or more foreign—can easily shift operations to Canada or Latin America. Finally, there are concerns that the fees’ generated revenue is misdirected, and that the funds should be used to spur innovation in the U.S. technology industry rather than to increase law enforcement operations at the United States’ southwestern border.

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During a special session held this morning, the Senate passed a $600 million spending bill (pdf) that will increase law enforcement presence at the United States’ southwestern border with Mexico and will finance additional aerial drones and construction of two operating bases. The Senate passed an identical bill (S. 3721) on August 5 before adjourning for recess, but for technical reasons the Senate needed to approve the version of the bill approved by the House of Representatives on August 10 before sending it to President Obama for signature.

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Although some contend a comprehensive immigration bill is not probable as midterm elections near, President Obama has urged Republican lawmakers to work with Democrats in passing a law that would create an “orderly, fair, humane immigration framework in which people are able to immigrate to this country in a legal fashion,” reports Reuters. President Obama’s request followed his ordering 1,200 National Guard troops to Arizona’s border with Mexico, which he contends will not alone solve the problem.

The troop deployment was met with mixed reviews. Senator John McCain (R-AZ) contends that a deployment of at least 6,000 troops is necessary. Some view the move as an attempt by the president to show Republicans and centrist Democrats that he is serious about immigration, while certain Latino activists contend that it is merely a political gesture and will only negatively impact their community.

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A 26-page outline of a new proposed immigration overhaul bill would require all employers to use a newly-created Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment (BELIEVE) System as a means of verifying employee work authorization. Within 18 months of the proposed bill’s enactment, the Social Security Administration would be required to issue biometric social security cards, which within five years would serve as the only acceptable document employers could use for employment verification purposes. The proposal also calls for a 300 percent increase in monetary fines against employers that knowingly hire illegal workers, and enhanced civil and criminal penalties against employers that engage in egregious labor violations involving unauthorized workers. To learn more about the proposal and the potential implications for employers, please continue reading at Littler's D.C. Employment Law Update blog.

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Last Thursday, Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC) released a framework for comprehensive immigration reform. Although a bill has yet to be introduced, the Senators outlined their “four pillar” reform strategy in a Washington Post opinion column. This plan would include “requiring biometric Social Security cards to ensure that illegal workers cannot get jobs; fulfilling and strengthening our commitments on border security and interior enforcement; creating a process for admitting temporary workers; and implementing a tough but fair path to legalization for those already here.” For more information on this development, please continue reading at Littler's Washington D.C. Employment Law Update blog.

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The Wall Street Journal reports that a mandatory biometric identification card for U.S. citizens and legal residents could be included in a comprehensive immigration reform bill being spearheaded by Senators Charles Schumer (D-NY) and Lindsey Graham (R-SC). The card would contain standard identifying information, but would also contain a biometric identifier, e.g., fingerprints. Schumer has previously proposed such a card to replace E-Verify, the federal electronic employment verification system.

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Senators John Kerry (D-MA) and Richard Lugar (R-IN) have introduced the StartUp Visa Act of 2010 (S. 3029), which would create a new visa category (EB-6) for foreign entrepreneurs. Foreign entrepreneurs would qualify for a two-year visa upon demonstrating that a qualified U.S. investor will dedicate at least $250,000 to his or her startup venture. Moreover, permanent resident status would be available to EB-6 visa holders after two years upon demonstration that the startup has:

• created five full-time jobs in the United States (excluding employment of the entrepreneur’s spouse or children); and
• secured $1 million in additional investment capital; or
• generated $1 million in revenue.

The bill has been referred to the Senate Judiciary Committee.
 

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This week, Rep. Frank Kratovil (D-MD) introduced the “Criminal Penalties for Unauthorized Employment Act of 2010” (H.R. 4627). The bill amends section 274A of the Immigration and Nationality Act (8 U.S.C. § 1324a(e)(4)(A)) by establishing criminal penalties—and increasing the existing civil penalties—that can be levied against individuals with “hiring authority” who employ unauthorized aliens.

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Rep. Kenny Marchant (R-TX) introduced the Mortgage E-Verify Act (H.R. 4586), which requires that mortgagors’ legal immigration status be confirmed by E-Verify as a condition for modification of home mortgage loans issued by Freddie Mac and Fannie Mae, or insured by the Federal Housing Administration. The bill aims to curb mortgage fraud, particularly by illegal immigrants. Mortgage fraud increased 1,411% from 1997 to 2005, according to the U.S. Treasury Department’s Financial Crimes Enforcement division.

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In his 2010 State of the Union address, President Obama devoted only a single sentence to immigration reform. As reported by The Washington Post, this cursory treatment of the issue has led to “disillusionment” among immigration advocates. A staple of Obama’s campaign and early-term rhetoric, immigration reform has taken a back seat to health care reform and other issues, such as job creation.

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Two bills introduced in both the House and Senate last week would make significant changes to the H-2B guest worker program. Both the Increasing American Wages and Benefits Act of 2010 (S. 2910) introduced in the Senate, and the H-2B Program Reform Act of 2009 (H.R. 4381) introduced in the House of Representatives, would establish new procedural and monetary requirements for employers that seek to hire temporary foreign workers, as well as impose stiffer penalties for noncompliance with these new requirements. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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Rep. Solomon Ortiz (D-Tex.) and Rep. Luis Gutierrez (D-Ill.) have introduced the Comprehensive Immigration Reform for America’s Security and Prosperity (CIR ASAP) Act of 2009 (H.R. 4321), an immigration overhaul bill they hope will receive serious consideration early next year. In October, Rep. Gutierrez outlined a set of core principles that he planned to include in his reform legislation. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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Congressman Luis V. Gutierrez (D-IL) has unveiled comprehensive immigration reform legislation that would, among other provisions:

• strengthen border security;
• create a streamlined employment verification system;
• amend the visa program to promote the reunification of families;
• establish a commission to recommend changes to the current system of H-1B and H-2B visas for skilled workers;
• impose tougher penalties for employers who hire illegal workers; and
• legalize undocumented immigrants who register with the federal government, pay a $500 fine, learn English, pass background checks, and meet other requirements. Individuals who meet these requirements would then be eligible for a six-year visa and, finally, a green card.

In unveiling the bill, titled The Comprehensive Immigration Reform for America's Security and Prosperity Act of 2009 (CIR ASAP), Gutierrez was joined by a coalition of lawmakers, including the Congressional Hispanic Caucus, Black Caucus, Asian Pacific American Caucus and Progressive Caucus.
 

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Senators Bernie Sanders (I-Vt.) and Charles Grassley (R-Iowa) have introduced legislation that would prevent large companies that conduct mass layoffs from hiring foreign labor through guest worker programs. The Employ America Act (S. 2804) (pdf) builds on similar prohibitions included in the American Recovery and Reinvestment Act (ARRA or “Economic Stimulus”), which prevents companies receiving funds through the Troubled Asset Relief Program (TARP) from replacing laid-off citizen workers with foreign labor. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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The New York Times reports that the Obama Administration will push to implement immigration reform measures in the first quarter of 2010. Department of Homeland Security Secretary Janet Napolitano indicated today in an address to the Center for American Progress that immigration reform will be put on the political agenda early in 2010. Napolitano sent a clear message to Congress that it should be ready for movement on immigration. Specifically, Napolitano referred to a "three-legged stool" approach that will incorporate tougher enforcement laws aimed at employers and illegal immigrants, a streamlined system for legal immigration, and a stringent process to allow illegal immigrants to become legal. It is anticipated that the Administration's focus on securing the border and targeting employers that hire undocumented workers will substantially increase while the foundation is laid to introduce an immigration reform initiative to Congress.

This entry was written by Ian R. Macdonald.

Photo credit: David Franklin

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On October 28, 2009, President Obama signed into law the Department of Homeland Security Appropriations Act, 2010 (H.R. 2892). The law contains a measure that ends the “widow penalty,” the government’s practice of annulling a foreigner’s permanent residency application when his or her American spouse dies before the marriage is two years old. 

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On Tuesday the Senate approved by a vote of 79-19 the conference report for the Department of Homeland Security Appropriations bill (H.R. 2892) that includes provisions extending the E-Verify employment verification system and other visa programs. The House approved the conference report on October 15.  Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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Legislation introduced in both the House and Senate aimed at reducing illegal immigration would expand the E-Verify employment verification system, and require its use by all employers. The Secure America through Verification and Enforcement Act (SAVE Act) (H.R. 3308, S. 1505) was originally introduced in 2007, but died in committee. The current bills introduced by Rep. Heath Shuler (D-NC) and Sen. Mark Pryor (D-Ark.) remain substantially similar to the earlier versions. Essentially, both bills contain three components to curb illegal immigration, the second of which would impact employers. Both bills would mandate the use of E-Verify, although the Senate bill provides for a slightly longer timeframe in which all employers must be in compliance with the Act. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.

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Last week the Senate voted to accept an amendment (S. AMDT. 1375) to the Department of Homeland Security’s (DHS) Appropriations Bill (H.R. 2892) that would prevent the DHS from revoking its “No-Match” Rule. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.

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Yesterday, the Senate approved by voice vote an amendment (S. AMDT. 1371) to the Department of Homeland Security (DHS) appropriations bill (H.R. 2892) that would make the E-Verify program permanent. Currently a voluntary initiative, E-Verify is an Internet based system operated by DHS in partnership with the Social Security Administration (SSA) that allows employers to electronically verify the employment eligibility of potential and current employees. The amendment – introduced by Sen. Jeff Sessions (R-Ala.) – requires that all government contractors who do work for the federal government use E-Verify to screen their potential hires. Following introduction of the amendment, Sen. Charles Schumer (D-NY) criticized the E-Verify program, saying that it is a flawed system that “creates havoc for both employers and employees.” Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.

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The Senate Judiciary Committee held a hearing regarding Sen. Patrick Leahy’s (D-VT) proposal to allow U.S. citizens and legal immigrants to seek residency for their same-sex partners. As reported by The New York Times, Sen. Leahy has said that his initiative, contained in the Uniting American Families Act (S. 424), should be included in any comprehensive immigration legislation that Congress considers.

Currently, family unification provisions allow American citizens and legal residents to petition for residency for their spouses. Same-sex couples, however, cannot petition for partners; as a result, immigrant partners are at risk of deportation. The Uniting American Families Act would add the term “permanent partner” to immigration law provisions that refer to married couples and would legally define that term. Opponents of Sen. Leahy’s proposal argue that it would facilitate immigration fraud because it would be difficult for immigration officers to determine whether same-sex couples actually had an established relationship.

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A bill introduced by Rep. Gabrielle Giffords (D-AZ) would extend the E-Verify program through September 2014. The Employee Verification Amendment Act of 2009 (H.R. 2679) would also order a General Accounting Office (GAO) study to determine the cause of errors made by this employment verification system, and its effects on small businesses.  Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.

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Last week Assistant Senate Majority Leader Richard Durbin (D-Ill.) and Sen. Charles Grassley (R-Iowa) introduced legislation that would completely reform the H-1B and L-1 visa guest worker programs. The H-1B and L-1 Visa Reform Act (S. 887) aims to close perceived loopholes in the programs that critics argue allow foreign workers to displace qualified Americans seeking the same employment.  Continue reading this entry on Littler's Washington DC Employment Law Update blog.

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Representatives Gabrielle Giffords (D-AZ) and Sam Johnson (R-TX) have introduced a bill that would establish a mandatory electronic verification system to take the place of E-Verify. As reported at Workforce.com, Giffords and Johnson hope their bill, the New Employee Verification Act, will either be the foundation for employment verification in a broader immigration bill or move through Congress on its own.

The proposed legislation would:

• Require all employers to use either the Electronic Employment Verification System (based on the new-hire system used to enforce child support payments) or the Secure Electronic Employment Verification System (which would authenticate an employee’s identity using biometric information). Data for recently hired employees would be checked against Social Security and Department of Homeland Security databases to determine work eligibility.
• Eliminate the I-9 immigration form.
• Establish civil and criminal penalties for employers that knowingly hire illegal immigrants.
• Establish federal preemption of state laws on employment verification.
• Require that the Social Security database, which has a 4.1% error rate, be cleaned up before the new system takes effect.

Giffords and Johnson have collaborated on the legislation with The HR Initiative for a Legal Workforce, which is led by the Society for Human Resource Management.

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On March 30, 2009, U.S. Representative Jeff Flake (R.-AZ) introduced legislation (H.R. 1791) that would amend the Immigration and Nationality Act to authorize “certain aliens who have earned a Ph.D. degree from a United States institution of higher education in a field of science, technology, engineering, or mathematics” to be exempted from the numerical caps on H-1B visas. The bill, titled “Stopping Trained in America Ph.D.s From Leaving the Economy Act of 2009” (the “STAPLE Act”), was referred to the House Judiciary Committee. In addition to the exemption from the H-1B numerical cap, the legislation also would exempt the specified foreigners from the numerical limitations on permanent residence.

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At a meeting attended by all 24 members of the Congressional Hispanic Caucus, President Obama stated his intent to push for a comprehensive immigration overhaul during the first year of his presidency. Although the president was said to have discussed specific timelines for legislation, neither the President nor the attendees disclosed dates for action following their meeting. The White House sought to play down the talks and the substance of the discussions apparently in recognition of how difficult it will be to gain the support needed to pass legislation creating substantial change in immigration policy. Rep. Raul Grijalva, a Democrat from Arizona who attended the meeting, said that President Obama promised to use his executive authority to make some substantive immigration changes soon, without waiting for passage of legislation.

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On Friday, the United States Citizenship and Immigration Services (USCIS) announced that employers receiving funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act (covered funds) must meet additional requirements before hiring foreign nationals to work in the H-1B specialty occupation category. Continue reading on Littler's Washington DC Employment Law Update blog. 

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Term Asset-Backed Securities Loan Facility (TALF), a federal program aimed at reviving the market for securities backed by consumer and small-business loans, is being hampered by a new law that makes it more difficult for investment firms to bring in foreign employees. Last month, legislators added provisions to the stimulus bill that prevent investment firms who get funds under rescue programs from replacing fired U.S. workers with foreign employees. There is growing concern that these hurdles will prevent companies from participating in TALF. The Fed is working with U.S. Citizenship and Immigration Services to provide guidance on the issue.

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In a late session yesterday, the Senate voted to approve the $410 billion omnibus appropriations bill (H.R. 1105). The House had approved this measure – which extends the E-Verify and EB-5 investor visa programs until September 30, 2009 – on February 25.  Continue reading about this development on Littler's Washington DC Employment Law Update blog.

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A recent posting to the Bits Blog (hosted by NYTimes.com) calls the bank bailout legislation’s provision discouraging banks from recruiting skilled foreign workers “a political gesture, understandable and probably empty.” The real problem is the great number of “bright, ambitious” immigrants leaving the United States and returning home. This problem is the topic of a report released on March 2, “America’s Loss Is the World’s Gain” (PDF). The principal author of the report estimates that over the next five years 100,000 immigrants from India and China will leave the United States, as compared to 50,000 over the past two decades. Of the 1,203 Indian and Chinese workers who were surveyed for the report, growing demand for their skills and promising career opportunities back home were cited by 87% of the Chinese and 79% of the Indians as the major professional reason for returning.

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Representatives John Shadegg (R-AZ), Jeff Flake (R-AZ), and Ed Pastor (D-AZ) have sponsored legislation to create a new nonimmigrant visa category for professional nurses called the “W” visa. If passed, the legislation will provide some relief for the country’s healthcare industry, which is experiencing a severe shortage of qualified and available nurses.

The shortage is compounded by the fact that there are not enough students enrolled in U.S. nursing programs to: (1) backfill those positions that are open due to attrition and retirement; and (2) fill the existing positions currently available. According to the proposed Nursing Relief Act of 2009, which cites a Department of Labor Report, the current national nursing shortage exceeds 126,000.

The proposed legislation also reflects what immigration and healthcare professionals have stated for years – current immigration laws do not adequately address the need in this country for qualified nurses and do not provide an adequate visa category and/or quota to help alleviate this need. The Nursing Relief Act of 2009 seeks to address these issues directly and provide the healthcare industry with the ability to overcome this shortage by recruiting, hiring, employing, and retaining qualified nurses regardless of their country of citizenship. To qualify for the proposed new “W” visa, an individual must meet the standard of a “professional nurse” as defined by the state licensing agency, and must be hired to work as a professional nurse for a qualifying U.S. employer. The initial status would be valid for three years and could be extended for an additional three-year period.

This entry was authored by Russell Ford.
 

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Embedded in the massive House Appropriations bill (H.R. 1105) that was approved on Wednesday by a vote of 245-178 are provisions extending the E-Verify and EB-5 investor visa programs until September 30, 2009. Both programs are set to expire on March 6, 2009.  Continue reading about this development on Littler's Washington DC Employment Law Update blog.

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As reported at Workforce.com, Rep. Ken Calvert, R-California, who authored the bill that established E-Verify, was unhappy that a provision requiring companies receiving stimulus funding to sign up for E-Verify did not survive in the $787 billion stimulus package. Representative Calvert stated that “there is no assurance that the jobs created will go to American workers,” and asserted that E-Verify was “stripped out of the bill without discussion or debate.” A separate provision, which would have reauthorized E-Verify, also was excluded from the final stimulus package.

Even though E-Verify did not make it into the stimulus package, Congress is likely to find a way to maintain the program (due to expire on March 6, 2009) until it can be addressed as part of a comprehensive immigration bill.
 

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Immigration-related bills are being introduced at a rapid pace. While many of these bills are destined to languish in committee, the sheer volume of immigration legislation introduced by both parties barely two months into the new Congress increases the chance that at least one bill will eventually receive real consideration. The latest bill – Electronic Employment Eligibility Verification and Illegal Immigration Control Act (H.R. 1096) – would amend the Immigration and Nationality Act to create an electronic employment eligibility verification system and a detailed employment verification process, expand the verification system to apply to previously hired individuals, and increase employer penalties for violations, among other things. Continue reading about this bill on Littler's Washington DC Employment Law Update blog

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The American Recovery and Reinvestment Act of 2009, signed by President Obama on February 17, imposes limits on the availability of H-1B visas, but the E-Verify amendment proposed in an earlier version of the bill was eliminated from the final version. Continue reading Littler's ASAP, "Besides COBRA: What Does the Stimulus Package Have for Employers," by Ellen N. Sueda, GJ Stillson MacDonnell, Patricia A. Haim, and Chadwick M. Graham.

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The nation’s economic troubles have inspired a number of new employment-related bills. One immigration bill seeks to promote hiring Americans by limiting the incentives for illegal aliens to move to the United States to live and work, while another bill would facilitate the hiring of foreign workers under the H-2B guest worker program. Continue reading about these bills on Littler's Washington DC Employment Law Update blog.

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The Senate has approved a modified amendment to the massive stimulus bill (H.R. 1) that substantially limits employers that receive Troubled Asset Relief Program (TARP) funds from hiring employees who hold H-1B work visas. This amendment was sponsored by Senators Bernard Sanders (I-VT) and Charles Grassley (R-Iowa). Continue reading on Littler's Washington DC Employment Law Update blog.

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In comments to a small group of Hispanic journalists, White House Chief of Staff Rahm Emanuel cited a newly signed law that provides health benefits to legal immigrants’ children as a signal that, in the debate over immigration, “the arrow has begun to point in a different direction.” Emanuel’s comments, as reported at HispanicBusiness.com, refer to a law that increases the number of children covered by the State Children’s Health Insurance Program (SCHIP) from 7 million to 11 million, including--for the first time--children of legal immigrants. Emanuel would not say when Obama might propose comprehensive immigration reform.

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President Obama's immigration agenda has been posted on the official White House website.  The broad agenda is composed of the following items:

Create Secure Borders: Protect the integrity of our borders. Support additional personnel, infrastructure and technology on the border and at our ports of entry.

Improve Our Immigration System: Fix the dysfunctional immigration bureaucracy and increase the number of legal immigrants to keep families together and meet the demand for jobs that employers cannot fill.

Remove Incentives to Enter Illegally: Remove incentives to enter the country illegally by cracking down on employers who hire undocumented immigrants.

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A bill that would amend section 274A(e)(4)(A) of the Immigration and Nationality Act to substantially increase employer penalties for violations was introduced last week by Rep. Sue Wilkins Myrick (R-NC). The 10k Run for the Border Act (H.R. 588) would increase the fines for knowingly hiring or recruiting an undocumented worker, or continuing to employ an illegal alien when the employee’s legal status changes or becomes known. Continue reading entry on Littler's Washington DC Employment Law Update blog.

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A new bill introduced in the House by Rep. David Dreier (R-Calif.) would significantly increase fines and jail time for employers who knowingly hire illegal aliens or fail to verify their employment eligibility using a new procedure outlined in the bill. The Illegal Immigration Enforcement and Social Security Protection Act of 2009 (H.R. 98) increases penalties for each hiring offense of up to $50,000, up from fines ranging between $275 and $16,000 under current law. Offending employers could also be liable for deportation costs. In addition, employers would face jail sentences of up to five years per offense, up from the current maximum six-month sentence. The bill likewise authorizes the Secretary of Homeland Security to bring a civil action against an employer who fails to pay the assessed penalty. Continue reading entry on Littler's Washington DC Employment Law Update blog.

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On January 6, 2009, Senator Harry Reid (D, NV) introduced S. 9, the "Stronger Economy, Stronger Borders Act of 2009" (SESBA), a bill "to strengthen the United States economy, provide for more effective border and employment enforcement, and for other purposes."

In its current form, the bill is a placeholder for comprehensive immigration reform legislation. The introductory remarks of Senator Patrick Leahy (D, VT), however, provide additional insight into the nature and scope of the legislation. Sen. Leahy stated in part, as follows:

Mr. President, as we begin the 111th Congress, we will try, once again, to enact comprehensive immigration reforms that have eluded us in the past several years. With an administration that understands the critical necessity of meaningful reform and that understands the policy failures of the last 8 years, I am hopeful that the new Congress can finally enact legislation consistent with our history as a nation of immigrants.

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Given the current economic crisis and other pressing issues facing the new president, sweeping immigration legislation is unlikely. Immigration policy in general is a contentious topic, so expect more piecemeal legislation as opposed to radical, across-the-board reform, as even in this economy there are areas where the shortages are not meeting our demographic needs, such as healthcare recruitment. Continue reading entry on Littler's Washington DC Employment Law update blog.

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