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

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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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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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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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 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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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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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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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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