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

By Ian MacDonald, Jorge Lopez, Scott Decker and Michelle Valerio

The “Border Security, Economic Opportunity, and Immigration Modernization Act” (S. 744) was introduced in the Senate early Wednesday morning by the “Gang of Eight,” a group of bi-partisan senators. The bill’s key features include: enhancement of border security and mandatory enrollment in the E-Verify program; legalization and a “pathway to citizenship” for unlawfully present individuals who entered the U.S. before December 31, 2011; and significant expansion of employment-based immigration coupled with elimination of the visa lottery and reduction of family-based immigration options.

The items in the proposed legislation of most importance to employers include:

• All employers would be required to enroll in E-Verify within 5 years.
• The bill would dramatically increase the number of temporary employment options for foreign workers. Specifically, the number of H-1B visas for temporary professional workers would increase from the current 65,000 visas per year (with additional 20,000 set-aside for graduates of U.S. graduate schools) to between 110,000 and 185,000 per year (with additional 25,000 set-aside for graduates from U.S. graduate schools pursuing STEM degrees). Furthermore, spouses of H-1B workers would be eligible for employment authorization, as long as reciprocal employment authorization benefits are afforded to US citizens in the foreign national’s home country. However, the mechanics of the H-1B program would be more difficult than they are now, with the addition of a recruitment requirement for all H-1B labor condition applications with a 30-day posting on a U.S. Department of Labor website, a non-displacement attestation, a change in the way prevailing wages are determined, heightened fees for heavy users of the H-1B program, and additional fees for companies that outsource or lease H-1B workers to third-party companies. Companies would be banned from the FY2014 H-1B cap if more than 75% of their US workforce held H-1B or L-1 visas, from FY2015 if more than 65% of their US workforce held H-1B and L-1 visas, and from FY2016 if 50% of their US workforce held H-1B and L-1 visas.

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On March 18, 2013 Senator Grassley introduced the H-1B and L-1 Visa Reform Act of 2013 to the Senate. The Bill, which Senator Grassley believes will reduce visa fraud, would require employers to post available job openings on the Department of Labor Website for 30 days prior to petitioning for an H-1B worker. Amongst other requirements, the Bill would also facilitate the ability of the Department of Labor to conduct random audits and investigations on H-1B visa employers. The fines for violations of the H-1B and L-1 visa programs would increase from $1,000 to $2,000 and $5,000 to $10,000 per violation, for willful misrepresentation and restrict the ability of these companies to participate in future recruiting of H-1B and L-1 employees.

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By Scott Decker

Two immigration reform bills recently introduced in the U.S. Senate will likely be included in the comprehensive immigration reform discussions currently underway in Congress. One is a “carrot,” providing additional visas for foreign investors, and the other is a “stick,” providing enhanced verification of workers’ employment authorization.

On January 30, 2013, Senators Mark Udall (D–CO) and Jeff Flake (R–AZ) announced their intention to reintroduce the bipartisan Startup Visa Act. The proposed bill would create an employment-based immigrant visa for alien entrepreneurs who have received significant capital from investors to establish a business in the United States. Under this proposal, immigrant entrepreneurs and foreign graduates of U.S. universities could apply for a two-year visa on the condition that they secure financing from a qualified U.S. investor and can demonstrate the ability to create U.S. jobs.

On January 31, 2013, Senator Charles Grassley (R–IA) introduced S. 202, the Accountability Through Electronic Verification Act of 2013. This bill proposes to expand the use of E-Verify, a voluntary internet-based system that allows businesses to determine the employment eligibility of their workers by comparing information reported on an employee’s Form I-9 to information in databases maintained by the Department of Homeland Security and the Social Security Administration. The Act would make use of the E-Verify program mandatory for all employers, allow employers to use E-Verify before a person is hired, and require employers to check the status of all current employees within 3 years. Moreover, employers would be required to terminate the employment of those found unauthorized to work due to a check through E-Verify.

Additional immigration-related bills are expected to be introduced in the coming weeks, consisting of additional “carrots” and “sticks.”  

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By Scott Decker

On January 29, 2013 Senator Orrin Hatch (R–UT) introduced Senate Bill 169, The Immigration Innovation Act of 2013 (“I-Squared Act”). This bill has a number of aspects that would greatly benefit U.S. businesses and highly educated foreign workers.

The most significant change would be to the H-1B program, the visa category available to individuals seeking to work in professional positions in the United States. Specifically, the H-1B “cap” would be increased from the current 65,000 to 115,000, with the possibility of an increase to up to 300,000 annual visas should demand so require. Moreover, while current law exempts 20,000 H-1B numbers from the H-1B cap for individuals possessing a master’s degree or higher from a U.S. university, the I-Squared Act would make all such individuals completely exempt from the H-1B cap. Additionally, spouses of H-1B workers would be eligible for work authorization, something that is not permitted under current law.
 

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By Carol Williams

By a unanimous vote, the Senate approved a bill (S. 3245) that would extend four key immigration programs. The bill, which Senator Patrick Leahy (D-VT) introduced on May 24, 2012, authorizes a three-year extension for the E-Verify program, the EB-5 Regional Center program, the Special Immigrant Religious Worker program and the Conrad State 30 J-1 Visa Waiver Program. All four programs are set to expire on September 30, 2012, and the bill would set a new expiration date of September 30, 2015.

•  The E-Verify program assists employers in verifying the employment eligibility of its employees.
• The EB-5 Regional Center program is available to immigrant entrepreneurs who invest between $500,000 and $1,000,000 in a U.S. business that creates 10 full-time jobs for American workers.In exchange for job creation the entrepreneurs are given permanent resident status.
• The Special Immigrant Religious Worker program provides a path to permanent residence for religious workers in the United States. The religious workers can hold a professional or non-professional position within their religious vocation.
• The Conrad State 30 J-1 Visa Waiver program assists medical doctors studying in the United States on J-1 status. Each state receives 30 J-1 visa waivers for foreign medical graduates each fiscal year. A J-1 visa waiver eliminates the requirement that a J-1 physician return to his or her home country for two years before applying for a permanent U.S. visa.

The bill is now pending before the House for consideration.

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By Brent Wasser

New legislation authored by Senator John Cornyn, senior Republican on the Immigration, Refugees, and Border Security Subcommittee, would create 55,000 additional visas allocable to individuals who have earned a master’s or doctoral degree from a qualifying U.S. research institution. The bill aims to increase the global competiveness of American technology companies, who are short on talent with respect to high-tech workers such as engineers, mathematicians, and scientists. The bill has received considerable support from universities and high-tech industries in Senator Cornyn’s home state of Texas.

Importantly, the proposed legislation does not seek to increase the overall number of visas allocated to foreign nationals. Rather, it seeks to eliminate 55,000 diversity visas currently allocated to individuals from countries with low rates of migration to the United States. In place of the diversity visas, the narrowly written bill proposes to allocate 55,000 immigrant visas for eligible science, technology, engineering and mathematics (STEM) graduates (Master’s and Ph.D.) of qualifying U.S. research institutions who have job offers in related fields.

While it is unclear whether conservative Republicans will support the bill, Democrats, who currently make up the Senate majority, will likely oppose the legislation.

Photo credit: Cr-Management GmbH & Co. KG

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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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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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