07 Jun Summary of Senate Immigration Bill
The American Immigration Council published the following summary of the Senate Immigration Bill
What is S. 744?
The “Border Security, Economic Opportunity, and Immigration Modernization Act,” or S. 744, is a broad-based proposal for reforming the U.S. immigration system written by a bipartisan group of eight Senators known as the “Gang of Eight.” Senators Charles Schumer (D-NY), John McCain (R-AZ), Richard Durbin (D-IL), Lindsey Graham (R-SC), Robert Menendez (D-NJ), Marco Rubio (R-FL), Michael Bennet (D-CO), and Jeff Flake (R-AZ) drafted S. 744 in the spring of 2013. The bill addresses all aspects of the immigration process from border and enforcement issues to legal immigration reforms. It makes changes to the family and employment-based visa categories for immigrants, provides critical due-process protections, increases the availability of nonimmigrant workers to supplement all sectors of the workforce, and provides legal status to 11 million undocumented immigrants within the United States. The Senators intended this legislation to address these issues “…by finally committing the resources needed to secure the border, modernize and streamline our current legal immigration system, while creating a tough but fair legalization program for individuals who are currently here.”
If enacted, S. 744 would require that a series of enforcement measures, or “triggers,” go into effect prior to completing the legalization process. For example, although undocumented immigrants will be allowed to register for the new Registered Provisional Immigrant (RPI) program almost immediately, before those in RPI status can apply to become lawful permanent residents the Department of Homeland Security (DHS) must certify that the Comprehensive Southern Border Security Strategy is deployed and operational, 700 miles of fencing is complete, 38,405 border patrol agents are deployed, and the E-Verify employment verification system is in place, among other requirements. The Development, Relief, and Education for Alien Minors Act (DREAM Act) and Agricultural Job Opportunities, Benefits, and Security Act (AgJobs) are both incorporated into the RPI program, but applicants who qualify under those provisions will be eligible to obtain legal permanent resident status more rapidly.
Other aspects of the bill, such as changes in family and employment-based immigration categories, would go into effect gradually, giving DHS the opportunity to reduce extensive backlogs that have built up due to a lack of available visa numbers. One of the key aspects of the bill, backed by both labor and business, is a new “W” worker program that could expand over time based on workforce needs. Although W visas are for a limited duration, workers in W status may eventually be eligible to apply for lawful permanent residence, marking the first time that such less-skilled nonimmigrant workers would be allowed to transition to permanent resident status without an employer’s sponsorship. S. 744 also expands permanent visas for many foreign graduates from U.S. universities in the sciences and related fields, increases over time the number of temporary high-skilled visas based on demand, and expands opportunities for entrepreneurs and investors to come to the U.S.
S. 744 also addresses long-overdue shortcomings of the immigration removal, detention, and court processes, including authorizing access to counsel for certain vulnerable populations, giving immigration judges more opportunity to make case-by-case determinations on removal decisions, and streamlining the asylum program. It also increases the penalties for certain criminal activities, making it more difficult or impossible to become a legal resident due to drunk-driving convictions, gang activity, domestic violence, passport fraud, and identity theft. Finally, S. 744 encourages immigrant integration through more targeted programs and foundations to help legal immigrants become citizens.
What is the bill’s procedural standing?
The bill was introduced in the Senate on April 16, 2013, by Senator Schumer of New York and was referred to the Committee on the Judiciary. A total of 301 amendments (including the manager’s amendment) were proposed by committee members. A third of those were considered and 92 were incorporated into the bill by voice vote. On May 21st, S. 744 passed out of the Senate Judiciary Committee on a vote of 13-5. Debate on the Senate floor began on June 7, 2013. Senators filed more than 500 amendments, but very few actually were offered on the floor or voted upon due to filibusters. The primary exception, known as the “border surge” amendment, was introduced by Senators Bob Corker (R-TN) and John Hoeven (R-ND) and adopted by a vote of 67 to 27. S. 744 as amended passed the Senate on June 27, 2013 by a vote of 68-32.
What happens now that S. 744 has been passed by the Senate?
Now that the Senate has passed S. 744, it will be sent to the House of Representatives for consideration. In the case of S. 744, which contains proposals to raise revenue, the House is unlikely to simply take up the Senate bill, but could introduce essentially the same bill on the floor. Members of the House may introduce their own comprehensive package, which could be taken up; or the House may choose to consider a number of separate immigration bills that are packaged together for consideration. If the House passes a bill that differs from the Senate bill, the two bills will need to be reconciled. This may happen via a conference committee of appointed Senators and Members of the House of Representatives who would draft a compromise bill to reconcile the Senate and House versions.
How is the bill organized?
The bill is broken into five large sections, or titles, each of which has many subparts. You may hear references to Border Security (Title I), Immigrant Visas (Title II), Interior Enforcement (Title III), Reforms to Nonimmigrant Visa Programs (Title IV), and Jobs for Youth (Title V), or you may hear individual portions of the bill referenced, such as section 2741.
Title I, Border Security, includes requirements for various border plans, triggers, and the structure for DHS oversight (sections 1101 to 1121). Title II deals with the legalization of the current undocumented population, the regulation of future legal immigration flows, and the integration of newcomers (sections 2101 to 2553). Title III, Interior Enforcement addresses E-Verify, humanitarian reforms, and due process protections (sections 3101-3807). Title IV addresses existing visa programs for nonimmigrant workers and creates a new W visa for lesser-skilled workers, along with a government office to monitor the current employment numbers in the United States and adjust visa caps accordingly (sections 4101-4913). Title V establishes a fund designed to provide job opportunities for low-income youth (sections 5101 to 5105).
Title I: Border Security
Title one of the bill and its preamble address issues of border security, the oversight of the border, and the security goals (“triggers”) that must be achieved before other provisions of the bill are implemented. This part of the bill establishes that the security of the border is a primary concern as part of a comprehensive strategy to ensure a functioning, fair, and effective immigration policy.
Border Enforcement and Triggers
What resources are currently dedicated to border security?
In recent years, the resources dedicated to southern border security have increased dramatically. Since 1993, when the current strategy of concentrated border enforcement was first implemented, the annual budget of the U.S. Border Patrol has increased from $363 million to more than $3.5 billion. S. 744, as modified by the Corker-Hoeven amendment (also known as the “border surge” amendment), would lead to an unprecedented level of spending on border security.
What additional resources does the bill dedicate to border security?
The bill makes enormous investments in border security, including the following: deploying at least 38,405 full-time Border Patrol agents along the southern border (including an additional 19,200 more than currently in place); mandating an electronic exit system at all ports where Customs and Border Protection agents are deployed; constructing at least 700 miles of fencing, including double fencing; increasing mobile surveillance; deploying aircraft and radio communications; constructing additional Border Patrol stations and operating bases; hiring additional prosecutors, judges, and staff; providing additional training to border officers; and increasing prosecutions of illegal border crossings. The bill specifies mandatory area-specific technology and infrastructure that includes watch towers, camera systems, mobile surveillance systems, ground sensors, fiber-optic tank inspection scopes, portable contraband detectors, radiation isotope identification devices, mobile automated targeting systems, unmanned aircraft, radar systems, helicopters, and marine vessels, among other minimum requirements. The bill mandates 24-hour surveillance of the border region using mobile, video, and portable systems, as well as unmanned aircraft, and deploys 1,000 distress beacon stations in areas where migrant deaths occur. Interior enforcement against visa overstays is also increased. The Department of Homeland Security is required to initiate removal (deportation) proceedings, confirm that relief from removal is pending or granted, or otherwise close 90 percent of the cases of immigrants who have overstayed their visas by more than 180 days in the last 12 months. A pilot program is created to notify immigrants that their visas are about to expire.
What will these additional border security measures cost?
Spending on border security will reach record levels. The bill creates a fund with $46.3 billion of initial funding to implement the Act. Additional funding will be provided by visa and other user fees, which may be increased as necessary. $30 billion will be dedicated over a 10-year period to hiring and deploying at least 19,200 additional Border Patrol agents. $8 billion will be dedicated to the Southern Border Fencing Strategy, of which $7.5 billion will be for deployment and maintenance of fencing. $750 million will be dedicated to E-Verify implementation and expansion. $4.5 billion will be spent to carry out the Comprehensive Southern Border Security Strategy, and—if necessary—$2 billion will be allocated to implement the recommendations of the Southern Border Security Commission.
What are the Southern Border Fencing Strategy, Comprehensive Southern Border Security Strategy, and Southern Border Security Commission?
The bill requires that the Secretary of Homeland Security submit within 180 days of enactment of the bill a Southern Border Fencing Strategy that will identify where 700 miles of fencing, double fencing, infrastructure, and technology should be deployed. The Secretary must also produce a Comprehensive Southern Border Security Strategy within 180 days that will establish “effective control” of the border, which is defined as persistent surveillance of 100 percent of the border and a 90 percent effectiveness rate in preventing illegal crossings. The bill mandates the creation of a bipartisan Southern Border Security Commission that will be responsible for making recommendations and spending additional funds in order to achieve border-security goals if the Secretary of Homeland Security cannot certify “effective control” of all border sectors for at least 1 fiscal year within 5 years of enactment.
What goals must be reached before undocumented immigrants can gain legal resident status?
One of the primary purposes of the bill is to provide a path to Lawful Permanent Residence (a “green card”) for the existing undocumented population via the new Registered Provisional Immigrant (RPI) program. Before Registered Provisional Immigrants can apply for Lawful Permanent Resident status, several security goals, or “triggers,” must be met: the Southern Border Security Strategy must be deployed and operational, the Southern Border Fencing Strategy must be implemented and 700 miles of fencing completed, a mandatory employment verification system for all employers must be implemented, an electronic exit system must be implemented at all air and sea ports where Customs and Border Protection officers are present, and at least 38,405 full-time Border Patrol agents must be deployed along the southern border.
What oversight and protections will be implemented?
An independent Department of Homeland Security Border Oversight Task Force, with 29 members appointed by the President, including 12 members from the northern border region and 17 from the southern border region, will be established to make recommendations on border-enforcement policies, the impact of these policies on border communities, the protection of due-process rights and civil rights of border residents and migrants, and the training of border personnel, among other duties. The Secretary of Homeland Security will be required to report to Congress regarding the effectiveness of border security, the effectiveness of surveillance, wait times for border crossings, and border staffing. In addition, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman’s authority will be expanded to cover all DHS immigration agencies, including U.S. Customs and Border Protection.
Title II: Immigrant Visas
This title addresses permanent legal status in the United States. It creates a Registered Provisional Immigrant program for undocumented immigrants and incorporates versions of the DREAM Act and AgJOBS, for undocumented young people brought to the U.S. as children and for agricultural workers, respectively. It provides sufficient visas to erase the current backlog of family and employment-based visa applicants in the next 7 years, eliminates or changes some family-based immigration programs, and creates a new merit system that is based on points accrued through education, employment, and family ties.
Subtitles A and B: The earned legalization programs
These subtitles create paths that allow undocumented immigrants currently in the United States to show they are eligible to legalize their immigration status and eventually obtain U.S. citizenship.
The Registered Provisional Immigrant program
Who is eligible and what are the requirements?
The bill will allow undocumented immigrants to apply for Registered Provisional Immigrant (RPI) status if they have been in the U.S. since December 31, 2011, have not been convicted of a felony or three or more misdemeanors, pay their assessed taxes, pass background checks, and pay application fees and a $1,000 penalty (which may be paid in installments), among other requirements. Applicants must also be admissible under current law, which excludes individuals who have committed certain offenses, participated in terrorist acts, or belong to other excluded categories. Spouses and children of RPIs would also be eligible. RPIs will not be eligible for federal means-tested public benefits such as Medicaid, food stamps, and benefits under the Affordable Care Act, and in general will not receive social security credit for previous unauthorized employment (except in the case of those who received a Social Security number prior to 2004).
How does the RPI program reflect the special circumstances of undocumented immigrants?
Many undocumented immigrants eligible for RPI status could be disqualified based solely on immigration status-related violations of immigration law. Consequently, certain grounds of inadmissibility or other factors that would disqualify a large segment of the undocumented population do not apply to RPI applicants. For example, the 3 and 10 year bars do not apply. Judges also have greater flexibility to make case-by-case determinations involving minor criminal violations or other infractions for humanitarian purposes, to promote family unity, or in the public interest. Individuals who have been deported are generally ineligible, but may be permitted to re-enter the United States and apply for RPI status if they meet all other requirements and have close relatives who are U.S. citizens or Lawful Permanent Residents.
When can undocumented immigrants apply for RPI status?
If S. 744 becomes law, there will be a delay between its enactment and implementation of the RPI program. The bill gives the government a year to publish regulations governing the program. The official application period should begin on the date of final publication of these regulations and is set to run initially for one year, with a possible extension of an additional 18 months at the discretion of DHS. In the interim, S. 744 prohibits removal of individuals who are eligible for RPI status, although it does not stop DHS from putting anyone in immigration proceedings who has committed crimes or is otherwise ineligible for status.
How long does RPI status last?
The initial grant of RPI status is good for six years. RPI status may be renewed for six years if the immigrant has remained regularly employed, which allows for gaps of up to 60 days between employment periods. If the immigrant cannot show continuous employment, he or she must demonstrate income or resources not less than 100 percent of the poverty level. Note that the 2013 federal poverty level for a family of four is $23,550 per year. There are exemptions to the employment requirement for full-time enrollment in school, maternity leave, medical leave, physical or mental disabilities, children under 21, and extreme hardship. Applicants for RPI renewal must also undergo another background check, pay taxes, and pay any remaining balance of the $1,000 RPI penalty, among other requirements.
When will Registered Provisional Immigrants be eligible for Lawful Permanent Residence?
Registered Provisional Immigrants will be able to apply for Lawful Permanent Residence (a “green card”), but they must go to the “back of the line” and have been in RPI status for at least 10 years. They will receive permanent residency only after all other applications submitted before the enactment of the bill have been processed. Like the RPI requirements, the requirements for permanent residence will include maintaining regular employment, which allows for gaps of up to 60 days at a time. In the alternative, if an applicant cannot show regular employment he or she would have to show an average income or resources of 125 percent of the poverty line during the RPI period. Exceptions are made for full-time students, children under 21, physical or mental disability, and showings of extreme hardship. Applicants would also have to show that they have maintained RPI status, paid taxes, meet English proficiency requirements (or be pursuing a course of study in English), pass an additional background check, and pay application fees and an additional $1,000 penalty.
When will Registered Provisional Immigrants be eligible for naturalization?
Registered Provisional Immigrants who have been lawfully present for 10 years before becoming permanent residents will be able to apply for U.S. citizenship after maintaining permanent resident status for 3 years. Therefore, undocumented immigrants who legalize via the RPI track will have to wait at least 13 years to become citizens.
What background checks and security measures are part of the RPI process?
RPI applicants must submit biographic and biometric data (fingerprints) to allow DHS to conduct national security and law-enforcement checks. Applicants may be required to appear for a personal interview to determine eligibility. They must pass an additional background check when they renew their RPI status, and nationals of countries that are deemed a threat to national security may be required to pass additional screenings.
Undocumented immigrants who arrived as children
Is the DREAM Act part of the RPI program?
Yes. A version of the DREAM Act has been incorporated into the RPI program to address the special situation of many undocumented immigrants who entered the U.S. as children. DREAMers, however, are placed on a more accelerated path to permanent legal status and citizenship.
How do DREAMers qualify for RPI status? Is there a different timeline for DREAMers?
DREAMers apply for RPI status under the same application process as other undocumented immigrants. However, they may apply for Lawful Permanent Residence after five years in RPI status. To qualify for this accelerated program, an applicant must have entered the U.S. before he or she turned 16, have been in RPI status for at least five years, have earned a high-school diploma or GED, have completed at least two years of college or four years of military service, and have passed an English test and background checks, among other requirements. DREAMers may apply for citizenship as soon as they receive their green card.
Undocumented agricultural workers
Is there a special program for farm workers?
Yes, a special path to legalization based on the AgJOBS bill is provided for agricultural workers.Undocumented agricultural workers will be eligible for an immigrant status called a blue card. To qualify they must have performed at least 575 hours or 100 work days of agricultural employment during a two-year period ending December 31, 2012, and must pay a penalty and pass background checks. They must meet the same criminal and admissibility requirements as applicants for RPI status. They can be in blue-card status for up to eight years after regulations are published, and will not be eligible for federal means-tested public benefits. Blue-card holders may apply for Lawful Permanent Resident status five years after enactment of the bill if they have continued to work in agriculture, paid their taxes, and pay a fine. They may apply for citizenship after being permanent residents for five years.
Why are there different programs for DREAMers and Agricultural Workers?
S. 744 recognizes that legalization is not a one-size-fits-all proposition and consequently tailors programs to meet the characteristics of two important subsets within the undocumented population—young people who have grown up in the United States and therefore already meet many of the basic requirements for legalization, such as English fluency and knowledge of civics, and agricultural workers, who are offered an incentive to remain in agricultural work through an accelerated legalization process.
Subtitle C: Legal Immigration Reforms
This subtitle lays out reforms and new components of the immigration system and addresses backlogs and immigration levels. In particular, it creates a new merit-based point system with two tracks that award points to immigrants with educational credentials, work experience, and other qualifications. It will function alongside the current family-based immigration and employment-based immigration programs, which allow U.S. companies, citizens, and legal permanent residents to file petitions for relatives or employees.
The merit-based point system (Track 1)
What is the merit-based point system and how does it work?
This merit-based point system allows foreign nationals to obtain Lawful Permanent Residence in the United States by accumulating points mainly based on their skills, employment history, and educational credentials. At the same time, the current immigrant visa categories for siblings and adult married children of U.S. citizens, as well as the diversity visa program, are eliminated and replaced by this system.
How many visas will be allocated each year to the merit-based point system?
Between 120,000 and 250,000 visas would be allocated each year based on the point system. The visa cap would fluctuate using a formula that takes into account the number of visas requested the previous year and the unemployment rate.
What are tier 1 and tier 2 and how do they work?
The system would be divided into two “tiers,” tier one visas would be designated for higher-skilled immigrants with advanced educational credentials and experience, and tier two visas would be reserved for less-skilled immigrants. Beginning in fiscal year 2018, 50 percent of the visas will be allocated to applicants with the highest number of points under tier 1, and 50 percent will be allocated to applicants with the highest number of points allocated under tier 2.
How will points be allocated?
The allocation of points in both tiers is based on a combination of factors, including education, employment, occupation, civic involvement, English language proficiency, family ties, age, and nationality. For example, 15 points are allotted for a doctoral degree, 3 points for each year of work experience in a highly-skilled job, 10 points for being a primary caregiver, and 8 points for being under the age of 24. There is no “passing score” that needs to be reached to qualify. However, the system prioritizes immigrants who are young, educated, experienced, skilled, and fluent in English. Family ties and regional diversity are less-heavily weighted. Ten points maximum of a total of 100 are assigned based on family ties, and 5 points are given to nationals of countries with low immigration to the United States. Years spent working in the U.S. as a W nonimmigrant worker can be credited towards a merit-based application under Track 1, tier 2.
How will these new point systems affect immigration flows?
Proponents of a point system have argued that we must move away from family-based immigration to a system that is tied to economic necessity. The merit-based point system is designed to balance a range of factors in assessing who should be admitted to the United States, but it remains an experiment. Supporters argue that similar systems have been used in other major industrialized nations. Critics have pointed out that it puts some applicants at a disadvantage, such as women, people who work in the informal economy or do unpaid work, relatives of U.S. citizens with insufficient formal education and employment history, older adults, and applicants from less-developed countries. An amendment offered by Senator Mazie Hirono (D-HI) and adopted in committee requires the Comptroller General to issue a report on the point system’s impact on vulnerable populations over time.
Track two merit-based system
How will the track two system clear the backlog of pending visas?
The current immigrant visa system has created enormous backlogs of applicants, who sometimes have to wait decades to get an immigrant visa. This track will clear the backlog of applicants by allocating visas to applicants with pending applications over the course of 7 years starting in 2015, allowing these immigrants to qualify for Lawful Permanent Residency by 2021.
Who can obtain Lawful Permanent Resident status under this track?
Starting October 1, 2014, family- or employment-based applicants whose applications have been pending five years or more under the current system will become eligible for a visa. The Secretary of DHS is authorized to devise a process for distributing these visas over a seven-year period. In addition, the track two merit-based system makes visas available to RPIs who have maintained that status for at least 10 years.
Why is the track two system considered a “merit-based” system for visa allocation?
It is critical to the authors of the bill that the visa backlog be eliminated and that those who followed the rules receive legal status before RPIs can qualify for green cards. This section essentially ties those programs together, authorizing DHS to do what it takes to eliminate the backlogs within seven years. In the meantime, RPIs must earn their green cards through employment, learning English, paying taxes, and other contributions to the country.
What are the main changes to the family-based immigration system?
Petitions for spouses and children of Lawful Permanent Residents under the current family-based system will be considered immediate relatives, making them exempt from current visa caps and immediately eligible for green cards. There will no longer be an immigrant category for siblings of U.S. citizens, and visas will no longer be available to married sons or daughters of U.S. citizens who are over 30 years of age. These relatives would have to apply under the new point system or find another avenue in order to immigrate. The annual worldwide level of family-based immigrant visas will remain at 480,000 per year, minus the visas assigned to immediate relatives the previous year, but not less than 161,000 per year starting 18 months after enactment.
How does S. 744 address existing problems in the family-based immigration system?
S. 744 makes significant improvements to the family-sponsored immigration system, but does not address all criticisms. Notable improvements include eliminating the current backlogs in the system by 2021, recapturing unused visas from previous years, allowing parents of U.S. citizens to bring their minor children at the time they immigrate, and allowing for immediate reunification for spouses and minor children of Lawful Permanent Residents. On the other hand, the bill eliminates the categories for siblings and adult married children of U.S. citizens if they are over 30. The bill also does not specifically allow U.S. citizens or LPRs to petition for green cards for their same-sex spouses. However, since the Defense of Marriage Act (DOMA) was struck down by the Supreme Court in the case of United States v. Windsor on June 26, 2013, same-sex couples have been eligible for immigration benefits for the first time without any change to current immigration law.
What are the main changes to employment-based immigration?
Country-specific limits on employment-based immigrant visas, which have caused enormous backlogs for applicants from large countries like China and India, are eliminated. This will allow applicants from these countries equal access to the available employment-based visas. Certain highly skilled and exceptionally talented immigrants are also exempted from the worldwide cap, such as those who have extraordinary ability or advanced degrees in STEM fields from U.S. universities. STEM graduates would also be exempt from the labor certification requirement. The annual worldwide cap on employment-based immigrant visas will remain at 140,000 per year.
How does S. 744 address existing problems in the employment-based immigration system?
Some of the provisions in S. 744 would result in meaningful improvements in the employment-based system. As mentioned above, the bill will eliminate the current backlogs of pending applications in the system by 2021, and will allow the recapture of unused visas from previous years, in addition to preventing future backlogs of applicants from oversubscribed countries by eliminating country-specific caps. Highly skilled and very talented immigrants will be exempt from the cap, including immigrants of extraordinary ability, multinational executives, graduates of U.S. universities with advanced degrees in STEM fields, and physicians who fill special medical needs such as working in medically underserved areas. Spouses and children of employment-based immigrants will also be cap exempt, which means that each of the 140,000 visas allocated will go to an applicant hired for a job.
Integration into society
How does the bill help new immigrants integrate into society?
Compared to reform proposals from 2006 and 2007, S. 744 contains stronger devices designed to facilitate immigrants’ language acquisition, civic engagement, financial self-sufficiency, and upward economic mobility. In particular, the bill creates three new organizational structures: the Office of Citizenship and New Americans, the Task Force on New Americans, and the United States Citizenship Foundation.
What is the Office of Citizenship and New Americans?
This office will be responsible for promoting training on citizenship responsibilities for new immigrants, providing advice on integrating immigrants into society, establishing goals for immigrant integration, and providing information about English and citizenship education programs.
What is the Task Force on New Americans?
The Task Force will coordinate the federal response to immigrant-integration issues and advise on how to carry out policies and goals concerning access to education, workforce training, health care policy, access to naturalization, and community development.
What is the United States Citizenship Foundation?
The Foundation will expand citizenship-preparation programs, coordinate integration programs, and provide assistance to individuals applying for RPI status, LPR status, and naturalization.
Other changes to immigrant and non-immigrant visa programs
What is the new nonimmigrant agricultural W visa program?
This title creates a new nonimmigrant, less-skilled W visa agricultural worker program. (Note that Title 2 describes the agricultural W visa program while the non-agricultural W visa is described in Title 4.) When this program is operational it will replace the H-2A agricultural worker program, which has been criticized for being bureaucratic and inflexible. The program is innovative in that foreign workers enter the U.S. to work for employers designated by the Department of Agriculture, and may leave one job to go work for other designated agricultural employers. Designated agricultural employers must perform recruitment activities to show there are no available U.S. workers before W visa workers can be employed. W-2 visas are issued to contract employees and W-3 visas are issued to “at-will” employees. W visas are approved for 3 years and renewable for another 3. Employers must pay the W workers the higher of the minimum wage or specified wage rates, must generally provide housing or a housing allowance, and must provide U.S. workers the same benefits, wages, and working conditions. After the 5th year of the program the W agricultural visa cap will be set by the Department of Agriculture using a calculation that takes into account unemployment rates, market demand, and other factors.
What other changes are made to the visa programs?
Various changes are also made to the V visa program, including making it available to siblings of citizens and permanent residents. Additional protections are provided for children of the beneficiaries of visa petitions, stepchildren, widows, and orphans. The EB-5 investor visa program and the Conrad-30 J waiver program for physicians working in medically underserved areas are modified and made permanent.
Title III: Interior Enforcement
This title addresses DHS’s ability to enforce immigration laws while correcting many procedural problems with the immigration system. Central to Title III is a phased in, mandatory E-Verify employment eligibility verification program. The bill also addresses important refugee and asylum issues, enhances due-process protections in the immigration courts, increases the oversight of detention facilities, and toughens penalties for gang-related convictions and other offenses.
What is E-Verify?
E-Verify is an internet-based system that allows businesses to determine the eligibility of their employees to work in the United States by comparing information from an employee’s Employment Eligibility Verification Form I-9 to data from U.S. government records. Because the system is not currently mandatory, less than 1 percent of employers in the U.S. are enrolled in E-Verify.
What are the main changes to E-Verify in the bill?
Under S. 744, E-Verify will be expanded and made mandatory for all employers over a period of five years. The bill requires identity verification through the use of enhanced fraud-proof documents, such as tamper- and identity-theft resistant Social Security cards, and the use of a photo tool to allow employers to verify an individual’s identity. Employers are required to confirm identity and employment authorization within three business days after the employee accepts the offer of employment. A mandatory entry and exit system will be implemented at all air and sea ports to help ensure that foreign nationals are leaving the United States as required. The bill will take precedence over local and state laws related to the hiring of foreign nationals, creating a uniform national standard. However, the bill does not allow the creation of a national identification card.
What are the sanctions for those who do not comply with the new requirements?
Employers who knowingly hire, recruit, refer, or continue to employ an unauthorized immigrant or fail to comply with E-Verify requirements are subject to increased civil or criminal penalties. Civil fines are increased up to $25,000 per violation for employers that have committed multiple violations related to hiring unauthorized immigrants. Criminal penalties include two years in prison for employers who have repeatedly hired unauthorized workers, in addition to fines of up to $10,000. Employers who comply with the system’s requirements in good faith will not be penalized if DHS later determines that they have employed an unauthorized worker.
What are the main protections for employers and workers regarding the implementation of E-Verify?
The bill requires employers to use the E-Verify system for work authorization verification only, and prohibits its use for discriminatory purposes. The system will be subject to regular assessments and audits to detect misuse, discrimination, fraud, identity theft, and civil rights or privacy violations. Workers will have direct access to their information in the system, and will have the right to appeal a determination that they are not work authorized. Reports on the effects of the system on employers, U.S. nationals, and work-authorized individuals will be required.
When will the use of E-Verify become mandatory?
Generally speaking, all employers must use the E-Verify system within five years. Employers with more than 5,000 employees must use it no later than two years after publication of the regulations. Employers with more than 500 employees must use it within three years, with an exception for agricultural employers, who are given four years. All remaining employers subject to mandatory E-Verify must use the system within four years, with an exception for Indian tribal government employers, who are given five years, and for employment that is “casual, sporadic, irregular, or intermittent.”
Does E-Verify continue to pose concerns even in the context of a comprehensive reform package?
As with the current I-9 form process, which requires an applicant to show proof of identification and work authorization in order to be employed in the U.S., E-Verify is a system for validating work authorization. As a web-based system that relies on the integrity of other databases for its information, it has the potential to be more reliable than a human being merely glancing at documents, but it also has the potential to create significant confusion and delay for some employers and employees. S. 744 attempts to balance those possibilities, putting an emphasis on creating a more reliable database, offering clear safeguards for dealing with mistakes, and protections for privacy. Moreover, because it is tied to the implementation of a legalization program, it will be far more likely that the vast majority of people subject to E-Verify will be work authorized.
Protections for Asylees and Other Vulnerable Populations
What improvements does S. 744 make to the asylum process?
Currently, the law requires that asylees apply for asylum within one year of arrival in the United States. This requirement may prevent immigrants with legitimate claims of persecution from gaining asylum protection if their applications were delayed due to fear, lack of information, or other circumstances beyond their control. The bill eliminates the one-year deadline. The bill also eliminates barriers to family reunification and authorizes asylum officers to conduct a full asylum interview and grant asylum to asylum‐seekers identified at or near a U.S. border after they have successfully passed a credible fear interview, rather than sending them to the immigration courts. In the interest of efficiency, the President, in consultation with the Secretary of State and DHS, may designate certain persecuted groups with common characteristics whose resettlement in the United States is justified by humanitarian concerns or is otherwise in the national interest as meeting the requirements of refugee status. The bill also clarifies that asylum applicants are entitled to work permits within 180 days of filing an asylum application.
What protections does the bill include for victims of human trafficking and workplace abuse?
S. 744 includes expanded protections against human smuggling and trafficking. Employers recruiting workers abroad are required to register with the Secretary of Labor and post a bond. Employers must disclose the conditions of the visa and the work contract to the worker and are prohibited from charging the workers recruitment fees. S. 744 expands the availability of the U visa to include victims of serious workplace abuse, slavery, or other serious violations of workers’ rights. The bill increases penalties for human smuggling activities and establishes a pilot program to prevent child trafficking. Protections specific to J visa exchange program workers are provided, including disclosures of the terms of employment, payment of bonds by program sponsors, and audits of the exchange programs.
What other protections does the bill have for other vulnerable immigrants?
The bill provides additional protections for immigrants who are battered by their spouses and for other vulnerable individuals. Battered immigrants will be eligible to receive certain public housing, and will be eligible for work authorization while their VAWA petitions are pending. The bill also permits qualified stateless individuals to apply for Lawful Permanent Resident status.
Protections for Immigrants in Removal Proceedings
How does the bill protect the rights of immigrants who are in court proceedings?
Under current law, immigrants in removal proceedings do not have the right to appointed counsel if they cannot afford to hire a lawyer. The bill changes this in the case of unaccompanied minor children, immigrants with serious mental disabilities, and other particularly vulnerable individuals, and requires that a lawyer be appointed to represent them. The bill requires that immigrants in proceedings have access to evidence in the government’s files and adds additional immigration judges, additional court staff, and additional training programs for judges and staff.
How does the bill protect the rights of immigrants who are detained by the government?
The bill limits the use of solitary confinement and bars its use with children and the seriously mentally ill. In addition, the bill provides for secure, humane alternatives to detention such as electronic monitoring, increases oversight of detention facilities, mandates prompt custody determinations and bond hearings, and provides guidelines for the detention of the parents and caregivers of children.
How do these changes improve the administration of the removal system?
The bipartisan sponsors of S. 744 recognized that one of the consequences of the broken immigration system has been the deterioration of due-process protections and a severely strained immigration court system. The changes proposed to both systems begin to address long-standing criticisms of the government’s failure to adequately use alternatives to detention, to provide sufficient resources to immigration courts to process cases, and to ensure humane treatment of those in the government’s custody. Justifications for these measures include not only ensuring appropriate standards of treatment, but efficiency and cost arguments related to the best way to manage a highly complex system.
Penalties for Crimes
What is inadmissibility and deportability?
Non-citizens may be found inadmissible or deportable and removed from the U.S. if they have committed certain offenses. Immigrants who have been admitted to the United States can be subject to deportation, or found to be deportable. Immigrants who are applying for admission to the U.S., or are applying for lawful status in the U.S., may be found to be inadmissible.
How does S. 744 increase penalties for immigrants involved in gangs and other criminal activities?
The bill makes immigrants inadmissible or deportable if they have been convicted of an offense that involves participating in a street gang and promoting the criminal activity of the gang. Undocumented immigrants involved in gangs will also be ineligible for Registered Provisional Immigrant status. The bill makes immigrants inadmissible if they have been convicted of a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment for which they served at least one year in prison, or if they were convicted of more than one such crime. In addition, during committee mark up, Senator Grassley (R-IA) proposed, and the committee adopted, an amendment that makes three drunk-driving offenses punishable as an aggravated felony.[i] Criminal penalties for illegal entry, for visa fraud, passport fraud, and passport trafficking are also increased.
Title IV: Reforms to Nonimmigrant Visa Programs
This title reforms the nonimmigrant visa programs for skilled workers and creates new programs for less-skilled workers, investors, and visitors. The visa cap on the H-1B skilled-worker program is raised while worker protections are increased. A new W nonimmigrant visa for less-skilled workers creates a new process for hiring foreign labor. A new nonimmigrant investor visa and an immigrant investor visa are also created. These employment-related programs aim to ensure that the U.S. economy has access to the labor and investment that it needs to drive growth and innovation, while protecting workers from exploitation.
Nonimmigrant Skilled Worker Visas
What are H-1B and L-1 visas?
Nonimmigrant visas are short-term visas for foreign workers who do not intend to stay in the U.S. permanently. The U.S. economy has a critical need for temporary highly skilled workers, particularly in the fields of science, technology, engineering, and math (STEM). Nonimmigrant skilled worker visas allow foreign workers with advanced skills to come to the U.S. temporarily to fill these needs. The most common skilled worker visas are the H-1B and L-1 visas. The H-1B visa is for foreign workers with at least a bachelor’s degree who come to work temporarily in a specialty occupation. The L-1 visa is for foreign workers who have gained essential experience abroad with a multinational employer that needs to transfer them here temporarily to assist in their operations in the United States.
How does S. 744 change the H-1B and L-1 visa programs?
The bill raises the annual H-1B visa cap, raises H-1B wage requirements, and requires employers to make significant efforts to recruit U.S. workers. The current H-1B visa cap of 65,000 is replaced with a cap that fluctuates between 115,000 and 180,000 based on a market escalator formula that considers employer demand and unemployment data. The lowest level wage that must be paid to H-1B workers is raised by narrowing the range of wages that employers must pay H-1B workers. Employers are required to place mandatory ads and perform other good faith recruitment to find U.S. workers before hiring an H-1B worker. Employers cannot intentionally displace U.S. workers and must pay an additional fee to place an H-1B worker with another company. Heavy users of the H-1B program, such as H-1B dependent employers or H-1B skilled worker dependent employers, have additional obligations, such as offering the job to U.S. workers first and a prohibition on having more than 50 percent H-1B or L-1 workers in their workforce. The bill also makes it easier for H-1B workers to change employers and limits employers’ ability to place L-1 workers with other employers.
Nonimmigrant Non-Agricultural Less-Skilled Worker Visas
What is the new W non-agricultural visa program?
The bill creates a W nonimmigrant visa for less-skilled, non-seasonal, nonagricultural workers, such as workers in janitorial and hospitality industries. (Note that Title 4 describes the non-agricultural W visa program while the agricultural W visa is described in Title 2.) W workers are admitted for a three-year period, renewable for an additional three-year period, and must work for registered non-agricultural employers in registered positions. The program will be supervised by a new entity, the Bureau of Immigration and Labor Market Research, which will designate shortage occupations and provide data and recommendations. The annual W visa cap for registered non-agricultural positions will fluctuate between 20,000 and 200,000, and employers must pay the W workers the actual wage or the prevailing wage for the occupation, whichever is higher. The cap for the construction industry will be 15,000. Employers are required to recruit U.S. workers for their positions, attest that working conditions of U.S. workers will not be adversely affected, and attest that there are no U.S. workers available for the jobs. A complaint process will be established to report violations, and penalties will include back wages, benefits, and civil penalties.
Why is the W visa different from past efforts to create lower-skilled worker programs?
The W visa program is the result of extensive negotiations between labor and business groups to create a program that is simple and efficient enough to meet business needs while protecting workers’ wages and working conditions. It is very different from previous temporary worker programs because it allows workers to leave their jobs to work for other employers registered with the program, creating a pool of labor that is responsive to labor market needs. W workers could also eventually apply for Lawful Permanent Residence using Tier 2 of the new Track 1 merit-based point system, marking the first time that such workers would be allowed to transition to permanent resident status without employer sponsorship.
What are the new investor visas created by S. 744?
The bill aims to attract additional investment and create jobs in the U.S. through new investor visa programs. It creates a nonimmigrant investor visa, or X visa, which is for entrepreneurs whose businesses have attracted at least $100,000 in investment, or have created no fewer than three jobs during a two-year period prior to the application and generated $250,000 in annual revenue. This is a temporary nonimmigrant visa that is granted for three years. The bill also creates an EB-6 immigrant investor visa that leads to Lawful Permanent Residence. This visa is for entrepreneurs who have a significant ownership in a U.S. business and have had a significant role in the start-up of the business. The business must have created at least five jobs and must have received at least $500,000 in venture capital or investment, or created five jobs and generated $750,000 in annual revenues in the prior two years.
Other Nonimmigrant Visas
What other changes are made to nonimmigrant visa programs?
The bill also creates and changes several other visa programs. It allows F-1 student visa holders to have dual intent. This means that students coming to the U.S. are allowed to have the intent to stay either temporarily or permanently. The bill creates a nonimmigrant retiree visa for foreign nationals over 55 who do not work, have health insurance, and have $500,000 to buy a residence in the U.S. The bill creates a Canadian retiree tourist visa that will allow Canadians over age 55 with a residence in Canada to enter the United States for up to 240 days. The bill modifies the H-2B nonimmigrant visa program, which is for non-agricultural, less-skilled workers who fill temporary, peak-load, or seasonal needs. It requires that H-2B workers be paid the prevailing wage or the actual wage paid to U.S. workers, whichever is higher, and requires that employers attest that they do not displace U.S. workers. The bill also allows employees of multinational corporations to enter the United States for 90 days to oversee operations or for 180 days for leadership and development training.
Title V: Jobs for Youth
The Corker-Hoeven amendment to S. 744 added Title V, which establishes a Youth Jobs Fund that will be dedicated to creating employment opportunities for low-income youth.
Youth Jobs Fund
What is the Youth Jobs Fund?
The bill would establish a fund that will provide summer and year-round employment opportunities for low-income youths ages 15-25. It will provide grants to states with approved employment plans that comply with labor laws.
How is the fund financed?
The bill allocates $1.5 billion for the fund in 2014. This funding will be recouped via a $10 surcharge on employment-based immigrant and nonimmigrant visas.
Cost-benefit Analysis of S. 744
According to the Congressional Budget Office (CBO) and Joint Committee on Taxation (JCT), the fiscal and economic effects of the Senate immigration reform bill (S. 744) would be overwhelmingly positive. If enacted, the bill would help reduce the federal budget deficit by approximately $1 trillion over 20 years, would boost the U.S. economy as whole without negatively affecting U.S. workers, and would greatly reduce future undocumented immigration. These are the conclusions laid out in three reports released in June and July 2013. On June 18, the CBO issued two reports on the version of S. 744 that was reported out of the Senate Judiciary Committee on May 28. The first one analyzes (or “scores”) the fiscal impact of the bill over the next 20 years and the second one focuses on the impact that some aspects of the bill would have on the U.S. economy. On July 3, the CBO issued a revised score on the version of the bill that passed the Senate on June 27. This version includes the Corker-Hoeven “border surge” amendment, which calls for a significant increase in border-enforcement spending.
What is a CBO score and what are its main implications?
Nearly every bill that is approved by a full committee of either house of Congress is subject to a formal cost estimate by the CBO. The report produced as a result of this analysis is known as the CBO “score.” The purpose of this analysis is to aid in economic and budgetary decisions on a wide assortment of programs covered by the federal budget. In general, the CBO estimates what the net fiscal impact of a bill would be, considering both the costs and the benefits associated with its implementation.
The CBO analysis of S. 744: What is at stake?
S. 744 would enable millions of undocumented immigrants to earn legal status and would revamp the legal immigration system. It also proposes new border and interior enforcement measures. All these components would have an effect on government finances and are therefore analyzed separately by the CBO. The bill would result in additional government revenue and new public expenses. At the same time, the different components of the bill would clearly have an impact on the economy. The CBO score may affect the type of amendments offered to the bill, any increase or decrease of programs offered, and the rhetorical arguments used to support or oppose the bill.
How would S. 744 affect the federal budget in the first 10 years after enactment?
According to the CBO’s revised score, enacting S. 744 would lead to a net savings of about $135 billion over the 2014-2023 period. This figure results from subtracting the costs of implementing the legislation ($23 billion) from the expected reduction in the federal budget deficit ($158 billion).
How would S. 744 affect the federal budget in the second 10 years after enactment?
S.744 would produce net savings of at least $905 billion over the 2024-2033 period. This figure results from:
- Subtracting the costs of implementing the legislation (between $75 billion and $80 billion) from the expected reduction in the federal budget deficit ($685 billion), which yields net savings in the range of $605 billion to $610 billion. These figures are contained in the CBO’s revised score of the bill.
- Adding an additional $300 billion in deficit reduction stemming from broader effects of the bill on the U.S. economy that are not considered in the CBO’s cost estimate. This figure is contained in the CBO’s economic impact analysis of the bill that was reported out of the Senate Judiciary Committee. According to the revised cost estimate, the economic effects of the bill passed by the Senate would differ only slightly from those estimated for the earlier version of the bill.
What explains the overall fiscal gains that would result from S. 744?
The net fiscal gains ($1 trillion over the 20-year period analyzed) would result from the fact that federal revenues would exceed spending. The boost in revenues is mostly attributable to the expansion of the size of the labor force and secondarily to the legalization of current undocumented workers. These changes would lead to additional collection of income and payroll taxes.
How would S. 744 affect the U.S. economy?
S. 744 would boost the output of the U.S. economy. According to CBO estimates, the bill would increase the U.S. Gross Domestic Product (GDP) by 3.3 percent ($700 billion) in 2023 and 5.4 percent ($1.4 trillion) in 2033.
How would S. 744 affect wages?
S. 744 would produce an increase in average wages by 2025. The CBO anticipates “that average wages for the entire labor force would be 0.1 percent lower in 2023 and 0.5 percent higher in 2033 under the legislation.” The initial miniscule drop in average wages would be fueled largely by the presence in the labor force of new immigrants who make less than the average wage. According to the CBO, “the estimated reductions in average wages…do not necessarily imply that current U.S. residents would be worse off, on average, under the legislation than they would be under current law.”
How would S. 744 affect unemployment?
The CBO predicts that S. 744 “would raise the unemployment rate over the next five years by up to roughly 0.1 percentage point,” but would “have no effect on the unemployment rate after 2020.” The initial marginal increase in the unemployment rate would occur as “the economy adjusted to the increased inflow of immigrants.”
To what extent would S. 744 deter illegal immigration?
According to the CBO’s revised score, under S. 744 the net annual inflow of unauthorized residents would decrease “by between one-third and one-half compared with the projected net inflow under current law.” However, the methodology behind the CBO’s estimate is unknown. It appears that the CBO underestimates the impact of S. 744 in reducing illegal immigration because it looks only at measures in the bill designed to deter illegal border crossings and employment in the United States. It fails to account for the incentives built into future-flow programs to encourage people to migrate legally and to depart on time. Taking these incentives into account, illegal immigration should decline significantly as new worker programs become fully implemented.
How does the CBO estimate the size of future unauthorized flows?
The anticipated one-third to one-half reduction in the net annual flow of unauthorized residents is based on two main assumptions: (a) that enforcement would make it more difficult for unauthorized immigrants to immigrate; and (b) that employment-verification requirements would make it difficult for unauthorized residents to find employment while unauthorized. However, the CBO does not present its methodology in detail.
What does the CBO fail to include when estimating the magnitude of future unauthorized flows?
The CBO does not account for the fact that the bill provides a structure of positive incentives for people to come to (or stay in) the country legally:
a) Through the new W visa, the bill creates stronger channels for lower-skilled workers when the economy is growing. This is crucial because past trends show that illegal immigration increases when the economy is expanding.
b) Workers on nonimmigrant visas would have the opportunity to apply for a green card through the point system (tier 2). This would lessen the likelihood of temporary workers staying in the country illegally after their nonimmigrant visas expire.
c) The tier 2 track of the new point system would make available between 60,000 and 125,000 visas each fiscal year for immigrants in high-demand less-skilled occupations.
d) The cap for employment-based immigrant visas allocated to “other workers” (less-skilled workers) would be raised significantly.
e) Under the Senate bill, spouses and minor children of Legal Permanent Residents (LPRs) would have an expedited process for immigrating to the United States. This would serve as an additional incentive to avoid illegal immigration related to family separation.
Based on these mechanisms, we can anticipate that these measures would reduce the number of unauthorized immigrants at a much higher rate than the CBO estimate.