TBA Law Blog


Posted by: Christy Gibson on Jul 22, 2013

     On April 16, 2013, Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet and Flake (“Gang of 8”) introduced Senate Bill 744 (S.B. 744) - “Border Security, Economic Opportunity, and Immigration Modernization Act.” The Senate passed the bill 68-32 on June 27, 2013. Below, is a breakdown of the major sections of the bill.

Registered Provisional Immigrant (RPI) Status by Shelley Starzyk*

     S.B. 744 proposes a new status - Registered Provisional Immigrant (“RPI”) status, for approximately 11 million undocumented immigrants present in the United States. The proposed RPI status would provide an intermediary status for immigrants between no legal status and a lawful permanent resident (LPR) or a green card holder.  Upon receiving a grant of RPI status, an immigrant will be lawfully present in the United States, be authorized to work, and be permitted to travel abroad. RPIs will be ineligible for any federal means tested benefits. The bill permits a grant of RPI status for a period of six-years, with the option of extending RPI status for six-year terms.

RPI Eligibility Requirements

     In order to be eligible for the proposed RPI status, individuals will need to demonstrate the following: (1) they were physically present in the U.S. on the date they submitted their RPI application; (2) they were physically present in the U.S. on or before December 31, 2011; and (3) they have maintained continuous physical presence from December 31, 2011 until their application for RPI status is granted.

     The bill specifies a number of grounds of inadmissibility[i] that must be considered and analyzed when proceeding with an RPI application. The bill waives certain grounds of inadmissibility that have plagued would-be LPR applicants for years, including the three-year, 10-year and permanent bar. However, felons, unlawful voters, and individuals with three or more misdemeanor convictions (excluding traffic offenses) are ineligible for RPI status.

     The bill includes a discretionary waiver for the three or more misdemeanor convictions and certain other inadmissibility grounds. This waiver requires the RPI applicant demonstrate that there is a humanitarian purpose, family unity, or it is otherwise in the public interest to grant the waiver. This discretionary waiver is unavailable to those inadmissible as drug traffickers, for national security reasons and other enumerated grounds. There are also provisions in the bill for a discretionary waiver for RPI applicants who have been previously deported, if the applicant is the spouse, child, or parent of a U.S. citizen or LPR.

     There will be a one-year window of time for individuals to submit their applications for RPI status. During this time period, RPI applicants must submit the following to the United States government in order to apply: (1) proper application forms; (2) proof that they do not have any federal tax liability; and (3) their biometric information for required background checks. In addition, any applicant over 16 years old must pay a processing fee for his or her application, and any applicant over 21 years must also pay a $1,000 penalty fee.

     Spouses and children may also apply for RPI status based off of their spouse or parent’s RPI status. In order to be eligible as an RPI dependent, the spouse or child must be able to demonstrate he/she: was physically present in the U.S. on or before December 31, 2012, maintained continuous physical presence since that time, and meet all other RPI requirements.

Adjusting from RPI Status to Lawful Permanent Residence

     An individual with RPI status can eventually become a LPR, although this cannot occur until all employment-based and family-based visas applied for prior to the enactment of this bill are available. This means all RPIs who want to apply for a green card must wait at the “back of the line.”

     Furthermore, S.B. 744 requires certain “triggers”, added as an amendment by Senator Bob Corker, before implementation of the ability to move from RPI to LPR. These required triggers include a mandatory employment verification system; an exit system at ports of entry; and the substantial implementation of the Southern Border Fencing Strategy.

     The proposed bill allows for an RPI to adjust their status to a LPR if the following conditions are met: (1) applicant was previously and is currently eligible for RPI status; (2) applicant has maintained continuous physical presence throughout their RPI status; (3) applicant has no federal tax liability since receiving RPI status; (4) since receiving RPI status, the applicant must show he has been regularly employed, with no unemployment periods over 60 days and will not become a public charge; although, there are specific exceptions and waivers for this requirement; and (5) applicant must demonstrate English language skills equivalent to those needed to naturalize, unless able to meet an enumerated exception; and applicant must pay both a processing fee and another penalty fee of $1000 if they were over age 21 on April 16, 2013.

     After an RPI becomes an LPR, he or she must wait at least three years before applying for United States citizenship.

DREAM Act by Sam Trenchi*

     The Development, Relief, and Education of Alien Minors Act (DREAM Act) was first introduced in the Senate in 2001 by Senator Orrin Hatch. However, the DREAM Act died in committee at that time. Later, in 2006, 2007 and 2010, Congress failed to pass it as a stand-alone bill or as part of a package. 

     In August 2012 President Barack Obama announced Deferred Action for Childhood Arrivals (DACA).  Frustrated with the lack of progress with the DREAM Act, the President decided to create an administrative process that provided a form of temporary relief for those who would otherwise qualify for legal status if the DREAM Act had passed. If eligible, an alien has any removal action against them deferred indefinitely and he is eligible for work authorization.

     Because DACA is discretionary, it creates no substantive rights and puts alien applicants at the whim of a future president and ever-changing policies.  Therefore, the Senate’s Comprehensive Immigration Reform bill contains the latest version of the DREAM Act which will provide for LPR status for those eligible individuals.  To be eligible for LPR status under the DREAM Act component of the bill, the alien must first receive RPI status. The DREAM Act allows for an acceleration of the 10-year process by providing for LPR status within five years. To qualify, an applicant must have entered the U.S. before the age of 16, have been in RPI status for the preceding five years, have earned a high school diploma or GED, and have completed two years of college or four years of military service. In addition, the applicant must meet the same English language requirements necessary for naturalization.  A hardship waiver will be available for those who do not meet the higher education or military service requirements where the applicant can show “compelling circumstances.”  Interestingly, those eligible will be considered LPRs while in RPI status for purposes of applying for citizenship, making them immediately eligible for naturalization, upon receipt of LPR status.

     Those previously granted deferred action under DACA will also benefit with DHS being granted authority to develop streamlined procedures to allow for DACA recipients to apply for LPR status. The bill gives the Secretary of Department of Homeland Security (DHS) the authority to determine these streamlined procedures. 

E-Verify and Employer Compliance by Bruce E. Buchanan*

     How will the Senate’s Immigration Reform bill, if passed into law, affect employers’ compliance and potential penalties for non-compliance.

Implementation of Mandatory E-Verify

     All employers would be required to utilize E-Verify, although the system would be gradually implemented.[ii] Within 90 days after the Act’s enactment, federal agencies and federal contractors would be required to utilize E-Verify.[iii] One year after the DHS publishes its implementing regulations, DHS may require employers involved in the country’s “critical infrastructure" to use E-Verify. All other employers would be required to use E-Verify based on this schedule after publication of the regulations: (a) 2 years - employers with more than 5000 employees; (b) 3 years - employers with more than 500 workers; (c) 4 years - all other employers, including agricultural employers; and (d) 5 years - Indian tribes.  Moreover, an employer, who has been found to have violated the Act through the hiring of undocumented workers, may be required to implement E-Verify at an earlier date even if it is not scheduled to do so.

Penalties

     The penalties for immigration violations will greatly increase. The civil penalties for “knowingly hiring” unauthorized workers will increase from $375 - $3200 to $3,500 - $7,500 for each unauthorized alien, for the first offense; from $3,200 - $6,500 to $5,000 - $15,000 – second offense; and $4,300 - $16,000 to $10,000 - $25,000 – third or more offenses. Substantive or uncorrected technical violations will result in an increase of civil fines from $110 - $1100 for first offense/per violation to $500 - $2,000; from $550 - $1100 to $1000 - $4000 – second offense; and $1,100 to $2,000 - $8,000 – third or more offenses.

     Employers, who hire undocumented workers after their mandatory enrollment date in E-Verify, but fail to verify the employee in E-Verify, will be presumed to have knowingly hired an unauthorized worker.  The verification of a worker’s authorization through E-Verify is evidence of an employer’s good faith and is grounds to avoid liability, if an individual is later determined to be undocumented. 

Appeal of Tentative Non-Confirmations

     The Senate bill adds additional time and appeals after receipt of a tentative non-confirmation (TNC). Individuals who wish to appeal a TNC will have 10 business days to contact the DHS or SSA. Thereafter, the agency will normally have 10 business days to resolve the matter. If one receives a TNC, one may file an administrative appeal, then appeal to an Administrative Law Judge and finally to a Circuit Court of Appeals. Currently, there is not any such procedure. 

Current Employees

     If an employee receives RPI status, an employer would not be considered to have previously employed an undocumented worker in violation of the law.  However, undocumented workers will be able to pursue remedies under federal, state, or local laws governing wages and hours, benefits, employment standards, labor relations, workplace health and safety, work-related injuries, discrimination, and retaliation, regardless of their unauthorized status. 

H-1B Visa Immigration Reform Proposed Changes by Terry Olsen*

     Under the Senate’s bill, the annual H-1B Visa Cap for highly-skilled workers will be increased from 65,000 per year to at least 110,000 per year.  Additionally, S.B. 744 allows for the H-1B Visa Cap to be increased to 180,000 per year, if there is extreme demand for highly skilled workers in a particular fiscal year.  Also, the advanced degree H-1B Cap for STEM degree holders from U.S. schools will be increased from 20,000 to 25,000 visas. 

     The fees will increase to $1,250 for each H-1B petition filed by any employer with not more than 25 full-time equivalent (FTE) employees in the United States, and $2,500 for each H-1B petition filed by any employer with more than 25 FTE employees. 

     Third, in terms of Prevailing Wage determinations, the Secretary of Labor shall provide a governmental survey to determine the prevailing wage for each occupational classification by Metropolitan Statistical Area in the U.S., which will set the wages at three levels.  The wage levels will be: (1) the mean of the lowest two-thirds of wages surveyed, but in no case less than 80 percent of the mean of the wages surveyed; (2) the mean of wages surveyed; and (3) the mean of the highest two-thirds of wages surveyed. 

     An employer, prior to filing the H-1B petition must (i) advertise the job on an Internet website maintained by the Secretary of Labor for the purpose of such advertising; (ii) offer the job to any U.S. worker, who applies and is equally or better qualified for the job for which the nonimmigrant(s) is sought; and (iii) if the employer is an H–1B-dependent employer, take good faith steps to recruit in the U.S. using procedures that meet industry-wide standards and offer compensation that is at least as great as that required to be offered to H–1B nonimmigrant(s).

Merit Based Immigrant Visa Reform: Points and Tiers by Terry Olsen

     If S.B. 744 is enacted, it will provide a merit-based point system to aid in the allocation of annual new immigrant visas of between 120,000 and 250,000 visas. This distribution of these points is determined on a case by case basis, based on an immigrant’s skills, level of employment, and education history. 

     Should the United States maintain an unemployment rate at or below 8.5 percent, with the condition that merit based visas were under 75 percent of the total demand in one fiscal year, the amount of new immigrant visa slots would increase by five percent over the previous fiscal year.  In addition, new immigrant visas that are not used from a prior year will be recaptured for use in the next fiscal year.

     It should also be noted that if the recapture of unused visas should occur after the 5th year of the implementation of the bill, the unused new immigrant visas will be distributed equally among two “tiers.”  The tier system will be put into place during the fifth fiscal year.  Tier one contains high skilled workers, and tier two contains lesser skilled workers. 

     While each tier has slight differences in terms of categories and allocated points, both are heavily influenced by education and employment.  There are five designated employment zones, number five requiring extensive preparation, and number one requiring little or no preparation.  For example, someone in job zone five will have a Ph.D., and work as a biologist. 

"W" Nonimmigrant Classification by: Bruce Buchanan

     The Senate bill creates a new “W” nonimmigrant classification for foreign workers who come to the U.S. temporarily to perform work for a registered nonagricultural employer. The spouse and children of the W visa holder will be allowed to join and given work authorization cards.

     The W nonimmigrant program would start on April 1, 2015. The annual cap on the maximum number of registered positions are limited for the first 4 years: 20,000 for the first year; 35,000 - second year; 55,000 - third year, and 75,000 - fourth year.  After the fourth year, the annual cap on registered positions may not be less than 20,000 or more than 200,000, according to a complex statistical formula.

     To be registered, an employer must submit an application to the Secretary of Labor with an estimated number of W nonimmigrants it will seek to employ each year, anticipated dates of employment, and a description of the type of work to be performed.  The Secretary of Labor shall approve employer applications as well as certified foreign worker’s applications for a term of three years, renewable for additional three-year periods.

     A registered position may not be registered unless the registered employer: advertises the position for 30 days, including the wage range, location, and proposed start date on the Internet website maintained by the Secretary of Labor, and with the workforce agency of the state where the position will be located.

     Except in the case of special allocations of registered positions, the wages paid will be either the actual wage paid by the employer to other employees with similar experience and qualification, or the prevailing wage level for the occupational classification in the geographic area/MSA of the employment, whichever is higher.

_________________________

*Shelly Starzyk is a solo practitioner and practices immigration law. She is a graduate of Case Western Reserve University School of Law. Ms. Starzyk may be reached at shelley@starzyklawpllc.comor (615) 669-4206

*Sam Trenchi is an attorney at Michael D. Ponce & Associates, where he practices personal injury and immigration law. He is a graduate of William H. Bowen UALR School of Law. Mr. Trenchi may be reached at sam@poncelaw.comor (615)851-1776.

*Bruce Buchanan is an attorney at the Nashville Office of Siskind Susser, P.C. He is a past-chair of the TBA's Immigration Law Section and current editor of TBA's Immigration Law Section Newsletter and TBA's Labor and Employment Law Section Newsletter.  Mr. Buchanan blogs on employer immigration compliance issues for LawLogix (http://www.lawlogix.com/electronic-i9) and ILW.com (http://blogs.ilw.com/immigrationcompliance/). Mr. Buchanan may be reached at bbuchanan@visalaw.com or (615) 345-0266.

*Terry Olsen is the founder of his own immigration law practice, Olsen Law Firm, in Chattanooga, Tennessee.  His practice areas include both employment immigration law and family immigration law.  Mr. Olsen is the Chair of the TBA’s Immigration Law Section. He may be contacted at tolsen@tlolaw.com or (423) 648-9390.  Mr. Olsen would like to thank his intern, Josef Oliver, for his contributions to this article.


[i] A “Ground of Inadmissibility” is a legal reason why the United States government cannot allow an individual to obtain immigration status in the United States. Typically a ground of inadmissibility relates to some act in the individual’s past that is specifically barred by the INA. The current grounds of inadmissibility are located in Section 212 of the INA

[ii] If a state already has a law requiring E-Verify’s use, that state law would continue to be in effect even if the federal law did not yet cover a particular employer.

[iii] Many federal contractors are already required to utilize E-Verify pursuant to a federal regulation.