Senate Gang of Eight Introduce Bipartisan Immigration Bill in the Shadow of the Boston Marathon Bombings and Gun Control Vote
PattonBoggs.com Immigration Client Alert 1APRIL 23, 2013This Alert provides only generalinformation and should not berelied upon as legal advice. ThisAlert may be considered attorneyadvertising under court and barrules in certain jurisdictions.For more information, contact yourPatton Boggs LLP attorney or theauthors listed below.SHAOUL ASLANsaslan@pattonboggs.comKRISTIN WELLSkwells@pattonboggs.comABU DHABIANCHORAGEDALLASDENVERDOHADUBAINEW JERSEYNEW YORKRIYADHWASHINGTON DCIMMIGRATION CLIENT ALERTSENATE GANG OF EIGHT INTRODUCE BIPARTISANIMMIGRATION BILL IN THE SHADOW OF THE BOSTONMARATHON BOMBINGS AND GUN CONTROL VOTEThe bipartisan “Gang of Eight” Senators introduced their comprehensiveimmigration reform bill, S. 744, the “Border Security, EconomicOpportunity and Immigration Modernization Act” on Wednesday, April17, 2013, with the support of President Obama. Senate JudiciaryCommittee Chairman Patrick Leahy (D-VT) held the first hearing on thebill Friday, April 19, another on Monday, April 22, and a final hearing, withSecretary of Homeland Security Janet Napolitano, today in response toRepublican calls for “full and careful consideration of legislative language.”The committee will host ongoing markup sessions in May. Depending onhow contentious the markup process is, the bill might not see floor actionuntil June.As the most sweeping overhaul of immigration law in nearly three decadesor more, there are many significant changes in this bill. This Client Alertfocuses on key areas of the compromise that are relevant to corporateinterests: border security, high-skilled visas, agricultural workers, low-skilledguest workers, E-verify and the pathway to citizenship for theundocumented.BORDER SECURITYBorder security has been a volatile issue in immigration negotiations foryears. Generally, Democrats seek a path to citizenship for undocumentedimmigrants, including millions who crossed the southern border illegally,and Republicans want assurances that the border is secure beforeaddressing legalization or citizenship of the undocumented.
PattonBoggs.com Immigration Client Alert 2S. 744 requires extensive improvements in border security over the next decade. The bill creates aComprehensive Southern Border Security Strategy to achieve persistent surveillance of high risk sectorsalong the southern border and effective apprehension of 90 percent of illegal entrants. It authorizes $3billion for surveillance and detection capabilities, additional border patrol agents, and unmanned and fixed-wing aircraft. The bill also creates a Southern Border Fencing Strategy and authorizes $1.5 billion to procureand deploy additional levels of fencing in high risk areas.With the exception of DREAM Act youth and agriculture workers, no undocumented immigrant mayachieve “Registered Provisional Immigrant” (“RPI”) status, a new legal classification that allows theundocumented to stay and work legally for 10 years, until the Secretary of Homeland Security notifiesCongress that certain border security benchmarks have been met. The Secretary must certify that “theComprehensive Southern Border Security Strategy is deployed and operational, the Southern BorderFencing Strategy has been implemented and completed, a mandatory employment verification system to beused by all employers is operational, and DHS is using an electronic exit system at air and sea ports of entrythat operates by collecting machine-readable visa or passport information from air and vessel carriers,”according to a Senate summary.If the 90 percent effective apprehension rate is not achieved within five years, the bill would create a BorderCommission of border security experts, Members of Congress, and the four border state governors toestablish border security standards and achieve them.HIGH-SKILLED VISASS. 744 allocates 40 percent of employment-based visas to two classes of employees: (1) those holdingadvanced degrees hired by a U.S. employer in the sciences, arts, professions, or business; and (2) thoseholding a master’s degree or higher in the science, technology, engineering, or mathematics (“STEM”) fieldsof study from a U.S. institution holding an offer for employment in a related field. The bill also creates anew startup visa for foreign entrepreneurs who seek to emigrate to the U.S. to start their own companies.The current H1-B visa cap is raised under the bill from 65,000 to 110,000 per year. In future years, the capcan be increased to as much as 180,000 per year, but the bill also would re-work the Department of Labor’sH-1B “prevailing wage” determinations that will likely require employers to pay “significantly higher wages”for H-1B visa holders to insure that H-1B visa holders do not undercut wages paid to American workers.
PattonBoggs.com Immigration Client Alert 3AGRICULTURAL WORKERSOn the basis of an agreement negotiated with the United Farm Workers Union and the AgricultureWorkforce Coalition, the bill reforms the current agricultural visa system. S. 744 creates a “Blue Card”program to allow current undocumented agricultural workers who meet certain conditions, including prioremployment in U.S. agriculture, an opportunity to legalize their status for eight years as Blue Card holders.By meeting established standards of the program, they would then be eligible to apply for Lawful PermanentResidency (a “green card”).For prospective temporary agricultural workers, the current H-2A visa program would be phased out andreplaced by a contract-based W-2 visa and a portable, at-will employment-based W-3 visa, both of whichwould allow for employment with a government - registered, “Dedicated Agricultural Employer.” The initialcap on this program would be 112,333 total visas, each valid for three years and tied to the government-established prevailing wage rate. Workers would no longer be required to remain with the employer whosponsored their original contract, reducing potential employee exploitation under threat of dismissal ordeportation. In addition, the bill modifies existing rules on employer-provided housing and transportation.LOW-SKILLED GUEST WORKERSThe bill creates a new, low-skilled guest worker program based on an agreement negotiated between theAFL-CIO and the U.S. Chamber of Commerce. In addition to creating a new temporary W visa for low-skilled workers, the program would create a new federal bureau to study labor shortages and disseminatemore information about low-skilled jobs to native-born workers, especially disadvantaged populations.The W visa would be incrementally introduced, with the number capped at 200,000 by the fifth year of theprogram and a 20,000 annual floor. The number of visas would be determined by the new Bureau ofImmigration and Labor Market Conditions, which would use “real-world data about labor markets anddemographics” to determine whether there are labor shortages that could be filled by guest workers. TheChamber also agreed that no more than 15,000 W visas could go to construction companies.As part of the bill’s plan to strengthen internal enforcement of immigration laws, the legal status and workauthorization of all employees hired in the United States will have to be verified through the federalgovernment’s E-Verify system. The Chamber supported this, having once opposed making E-Verifymandatory. The National Small Business Association continues to voice opposition, arguing that the systemis cumbersome and too prone to error.
PattonBoggs.com Immigration Client Alert 4PATHWAY TO CITIZENSHIPThe bill provides a path to citizenship for the estimated 11 million undocumented immigrants already in theUnited States. Individuals who arrived before 2012 and who have not committed a felony or threemisdemeanors may pay a $500 penalty, undergo a background check, and pay back taxes to qualify for RPIstatus. After 10 years, the immigrant may adjust to Lawful Permanent Residence status if fines, fees andtaxes have been paid; the individual has learned working English; and other conditions, including thoserelated to border security, have been met.The bill also aims to eliminate the backlog for lawful family-and-employment-based immigrants by adjustingthe caps for those visa categories, phasing out certain visa categories (including siblings and the DiversityVisa Program), creating new visa categories, and enacting a merit-based visa that gives “points” toindividuals based on certain categories and then awards visas based on those points.MORE INFORMATIONWe would be pleased to share more information on how Patton Boggs LLP can help you stay on top of thisreform process and ensure your needs are represented in the final legislative language. Please contactKristin Wells (202-457-6422 firstname.lastname@example.org) or Shaoul Aslan (email@example.com) for more information.