by Elaine Young
In October, Democrats in the House of Representatives released H.R. 15, their comprehensive immigration reform (CIR) bill. The bill essentially mirrors S. 744, which the Senate passed earlier this year. Meanwhile, House Republicans proposed a series of bills that addresses components of immigration reform (e.g., border security and agricultural and highly skilled workers) but does not capture all the legislation in one bill. Here’s a quick look at S. 744 (also known as the Border Security, Economic Opportunity, and Immigration Modernization Act), H.R. 15 (the House counterpart to the Border Security, Economic Opportunity, and Immigration Modernization Act), and the bills filed as a result of the former. 
S. 744
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.
H.R. 15
The House bill would slightly modify implementation of a merit-based immigrant visa. Successful applicants would receive a green card. Although an offer of employment would increase the likelihood of success, the immigrant visa would not require one, and employers would not be required to pay for or sponsor the visa. Like the diversity visa that is currently available (which would be done away with under H.R. 15), the immigrant visa would require applicants to apply once a year. U.S. Citizenship and Immigration Services (USCIS) would be required to issue visas by the end of the fiscal year.
The immigrant visa would come in two forms: employment-based (Track One) and family-based (Track Two). Applicants would be evaluated based on a number of factors, each of which would be allocated a certain number of points.
Track One would be broken down into Tier 1 and Tier 2, with Tier 1 emphasizing education and highly skilled work and Tier 2 allocating additional points for factors such as (1) promotions, (2) longevity, (3) increases in pay, (4) offers of full-time employment in high-demand, low- skilled jobs, and (5) an applicant’s status as a caregiver. Beginning October 1, 2014, Congress would allocate 120,000 visas for Track One, with future numbers based on demand and unemployment rates, up to 250,000. For the first three federal fiscal years, visas would be allocated to workers. After that, 50 percent of the visas would generally be allocated to applicants with the most points in each tier. In both tiers, people under 24 would score more points, as would siblings and married children (over 31) of U.S. citizens.
Track Two is an interesting mix. It would include a lot of the patient folks who have been “waiting in line” to immigrate legally. Thus, it could be referred to as a way to “eliminate the visa backlog.” For example, it would include beneficiaries of family- and employment-based immigrant petitions that have been pending for five years and were filed before enactment of H.R. 15. One of the current immigration system’s biggest problems is the long delay employers face in keeping employees who are waiting in line for green cards. Some employees wait six to 10 years for visas, even with a full-time, high-skilled job offer from a U.S. employer. Track Two should address that problem because it would move employees who have been waiting to the front of the line.
Family members of U.S. citizens and some permanent residents who have been waiting for at least five years also would be eligible under Track Two. The final category of eligible applicants would include long-term workers who have been lawfully living in the United States in an employment-authorized status for at least 10 years (until 2029, when the number would increase to 20 years). That category would not include workers who are admitted under the new “W” agricultural worker program.
Stay tuned for more information. Since CIR generally represents a step in the right direction for employers, let’s hope this bill has an easier path through the House than healthcare reform funding and the debt ceiling increase.
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.