by Elaine Young
During the month of May, the Senate Judiciary Committee marked up the comprehensive immigration reform bill that the “Gang of Eight” proposed earlier in the year. In June, we saw the House of Representatives debate over what to add or take away from the bill. Here’s a quick Q&A on how some of the most likely provisions will affect employers. Just a note―the bill is more than 800 pages long, so this is a general summary.
Drilling down to the basics
What’s going to happen to the 11 million undocumented aliens? Immigrants who entered the United States before December 31, 2011, may be eligible to receive registered provisional immigrant (RPI) status. They will get a work permit and will be eligible to work for any employer in any job.
What if I already have a worker who then becomes eligible for RPI status―do I have to terminate him when I find out he was undocumented? RPI applicants are going to have to demonstrate that they were physically present in the United States before 2012 and continuously thereafter. The Senate bill protects employers that provide employment records in support of an RPI application from civil or criminal prosecution for having employed those workers without authorization before the bill’s enactment. Of course, each employer will have to set its own policies for how it handles any false statements employees may have made during the hiring process.
What’s the new “blue card” ? Blue card status would be given to certain agricultural workers. To qualify, a noncitizen must undergo a background check and prove that he has performed at least 575 hours or 100 days of work in 2011 and 2012 and otherwise meets the RPI admissibility requirements. Blue card applications will be accepted for only one year from the date of the bill’s enactment, with the possibility of an 18-month extension. Qualified applicants who have previously participated in the H-2A visa program will be allowed to apply from outside the United States.
Will the ACA apply to RPI workers? No, the Affordable Care Act (ACA) wouldn’t apply to RPI workers, and they also wouldn’t be eligible for any federal means-tested benefits.
What’s the new W visa? The new W nonimmigrant visa classification will be available to foreign workers who maintain a foreign residence and come to the United States temporarily to perform services or labor for a registered nonagricultural employer in a registered position. The W visa will fill the gap for lower-skilled workers that the H-1B visa doesn’t address since it requires a bachelor’s (or equivalent) degree. The spouse and children of the W visa holder will be allowed to work. Employers will be able to “register” jobs by advertising for 30 days in various platforms, including on the U.S. Department of Labor (DOL) and state workforce agency websites. The number of available W visas will increase from 20,000 to 75,000 within four years.
How long is the path to citizenship? Most individuals benefiting from the Senate bill will be immigrants with RPI status. They must spend 10 years in RPI status before they become eligible for permanent resident status, and then they must wait an additional three years in that status before they become eligible for citizenship. Young people who benefited last year from Deferred Action for Childhood Arrivals (DACA), sometimes referred to as “Dreamers,” will have a shortened path―about five years. For blue card holders who perform ongoing agricultural work, the wait would be eight years.
What is the new merit-based points system for green cards? The legislation would eliminate the diversity visa lottery and proposes a points-based system. Under the new system, immigrants would be awarded points for factors such as education, length of employment, type of employment, family members in the United States, and length of residence in the United States. The law initially provides for 120,000 visas, with a cap of 250,000. The number of visas can increase based on demand, but it cannot rise if the unemployment rate is over 8.5 percent.
What about workers who are already in line? Workers who are waiting for green cards because of the high demand for that visa category would go to the front of the line. The bill would eliminate the visa backlog for those workers, so they should receive green cards sooner than they expect.
Will the H-1B petition process stay the same? No. The bill would institute a recruitment requirement for all H-1B petitions. Employers will have to advertise positions on a U.S. Department of Labor (DOL) website for 30 days. Also, the Labor Condition Application (LCA) processing time will increase from seven to 14 days. Because of the advertisement requirement and the increased LCA processing time, employers will need to plan well in advance of the April 1 filing date.
Notably, the original bill proposed by the Gang of Eight required employers to first offer open jobs to U.S. applicants who are equally or better qualified than the H-1B candidate. However, after the tech industry objected, Senator Orrin Hatch (R-Utah) pushed through an amendment that requires only employers that are dependent on H-1B workers to offer positions to U.S. applicants. Those employers include companies with 25 or fewer full-time employees (FTEs) and more than seven H-1B workers, companies with 26 to 50 FTEs and more than 12 H-1B workers, and companies with 51 or more FTEs if H-1B workers constitute at least 15 percent of their workforce.
What’s the effect on H-1B employers acting as third-party vendors? Employers that outsource their H-1B workers would have to pay a $500 fee, and employers that are dependent on H-1B workers would be prohibited from outsourcing H-1B workers altogether. The restriction will cut into some IT consulting firms’ ability to act as vendors in consulting contracts. Also, H-1B workers would be required to submit annual reports that include their H-1B W-2 tax forms to the U.S. Department of Homeland Security (DHS). Thus, employers need to ensure they are treating IT workers as employees, not independent contractors.
Will more H-1B visas be available? Will there be any relief for H-1B workers’ spouses? Yes and yes. The H-1B cap would be raised from 65,000 per fiscal year to a market-based floor of 115,000 and ceiling of 180,000. Under the bill, spouses of H-1B workers would be eligible to apply for authorization allowing them to work for any employer in any profession.
What about E-Verify? E-Verify, an Internet-based employment eligibility verification system that compares I-9 data to DHS and Social Security records, is currently mandatory for Utah employers with 15 or more employees, certain federal contractors, and employers of international students in the science, technology, engineering, and math (STEM) fields. The legislation would make E-Verify mandatory for all employers within five years, and large employers (those with 5,000 or more employees) would be required to comply within two years. The legislation would impose civil fines ($25,000 per violation) and criminal penalties for repeat violators. For a look at Arizona’s experience with mandatory E-Verify, click here.
Elaine Young is a member of Kirton McConkie’s International section in the Salt Lake City, Utah office. She has significant experience handling the immigration, tax, and benefits aspects of cross-border employment, including inpatriate transfers and working with counsel around the world to help U.S. companies send their employees abroad. She may be contacted at eyoung@kmclaw.com.