HR Management & Compliance

Senate immigration vote means employers need to stay tuned

The Senate’s passage of an immigration reform bill gives employers much to think about, but it’s hardly the last word on the issue. The House has been considering immigration measures of its own and is expected to tackle reform in a completely different way after the July 4 holiday.

The Senate passed a comprehensive reform bill on June 27 that calls for significant changes on the employment front as well as increased border security and a 13-year path to citizenship for an estimated 11 million undocumented immigrants. The Senate passed the measure, S. 744, by a vote of 68-32. Fourteen Republicans joined all 52 Democrats and two Independents in voting for the bill.

While the bill covers far more than employment matters, here are some of the key employment points:

  • E-Verify, the federal government’s computerized employment eligibility verification system, would become mandatory for most employers within four years and sooner for large employers.
  • The number of highly skilled foreign workers allowed in the country each year on H-1B visas would be increased from 65,000 to a market-based floor of 115,000 and a ceiling of 180,000.
  • A new W visa program would be set up for lower-skilled workers (non H-1B workers).
  • The number of visas for agricultural workers would be increased.
  • Farm workers would be eligible for “blue cards” under a temporary program.
  • The system of legal immigration currently in place would be changed, making family ties less of a factor than they are now and stressing education and job skills.

The final outcome of immigration reform is uncertain since House Speaker John Boehner (R-Ohio) has said the House is going to continue with its own approach in spite of the Senate vote.

If a compromise bill is eventually forged, it may be “starkly different from the Senate bill,” according to Elaine Young, a shareholder with the Kirton McConkie law firm in Salt Lake City, Utah. The House is considering four smaller pieces of legislation that attack the immigration problem piecemeal, and none of that legislation includes a path to citizenship, which is included in the Senate bill.

“What we are looking at now is what the House will do,” Young says. “If it passes all four pieces of legislation, then at least some form of a bill will go to a conference committee where both the Senate and House can weigh in. What the House will do with a compromise bill is up in the air right now, but that is what employers should be focused on, as any eventual bill will need to come by way of compromise.”

Young advises employers wanting to weigh in to contact their congressional representatives over the July 4 break since the House Republican Caucus is expected to meet July 10 to address the issue.

Christine Mehfoud, senior counsel at McGuireWoods in Richmond, Virginia, also says the Senate vote leaves immigration reform unsettled. “However, it is a start, and I think it is safe to assume that certain aspects (E-Verify) will be a part of any bill passed,” she says. Currently, all U.S. employers are required to check the legal status of potential employees using the Form I-9 process, and certain employers are required to use E-Verify.

The Senate bill goes beyond just making E-Verify mandatory for all employers. “The bill revamps the legal immigration system by increasing the number of temporary work visas for certain foreign nationals with expertise in ‘STEM’ areas—science, technology, engineering, and mathematics,” Mehfoud says. It also increases the number of work visas available for agricultural workers and creates a new class of work visas for lower-skilled positions in construction, retail, hospitality, and insurance.”

If some type of immigration reform is eventually signed into law, employers should plan to ramp up training to ensure they understand the documents acceptable for I-9 purposes and to make sure they’re able to implement E-Verify into existing immigration compliance programs, Mehfoud says.

“For those employers who historically have sponsored foreign nationals for work visas, additional nuances in an already highly complex system will likely require additional training and the assistance of experienced counsel,” Mehfoud says. “In addition, many employers who have never before jumped into the sea of complexity that is our nation’s immigration system (i.e., those in the construction, retail, and hospitality industries), may need to do so in order to stay competitive.”

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