The Federal Border Security and Immigration Reform Act of 2007

The U.S. Senate has spent weeks debating, amending and pontificating on U.S. immigration laws and policy. In light of all the coverage and debate and with many details to be addressed, what follows is a brief summary of the major components of the proposed Border Security and Immigration Reform Act of 2007 (S. 330). First, all employers will immediately be subject to electronic employment verification requirements. Second, the current green card system will be replaced with a merit point system. Third, there will be a temporary, two-year, guest worker program based on documented need, but numerically limited. Fourth, some folks that are currently illegally in the United States and meet certain criteria will be eligible to eventually apply for permanent residence (green card). Fifth, before some of the above provisions can be enacted, border control “triggers” will be increased and the penalties (employers included) for certain immigration violations will be increased.

Below is a short summary of each title of the act, currently being debated on the floor of the Senate. We will continue to watch the political action on this legislation and keep you informed.

Border Control

The Secretary of Homeland Security must certify that the triggers are met before the Title IV (guest worker) and Title VI (Z visa) programs will be implemented. These triggers are likely to include hiring 18,000 Customs and Border Patrol officers, constructing 200 miles of vehicle barriers and 370 miles of fencing and deploying 70 ground-based radar and camera towers along the southern border of the United States. Also, the triggers will include deployment of unmanned aerial vehicles, elimination of the catch-and-release policy and additional resources to detain up to 27,500 aliens. Finally, the Department of Homeland Security (DHS) must design, develop and implement secure and effective identification tools (systems, documents, etc.) to prevent unauthorized work by illegal aliens with fake documents.

Interior Control Issues

The interior enforcement of immigration laws will be audited to stiffen laws and penalties related to the detention of criminal aliens, the definition of aggravated felony and passport, visa and immigration fraud, including marriage fraud. Also, these internal changes will include increased penalties for illegal entry and reentry and firearm restrictions. Finally, there will be procedures to support state and local law enforcement.

Employer Enforcement of Immigration Law and Employer Liabilities

The Immigration and Reform Act of 1986 “deputized” all employers as “immigration officers.” The proposed new law further expands the burden of immigration law enforcement on employers. The workplace enforcement provisions will increase employer liabilities and responsibilities. Also, it will require that all U.S. employers register and participate in an electronic employment verification system (currently BASIC). Finally, the law will promote information sharing between government agencies to better prosecute employers and illegal workers.

For those not familiar with BASIC, the current electronic employment verification system (EEVS), it is an Internet database that checks a name, date of birth and possibly other data against a social security number. The BASIC verification system is currently available on a voluntary basis. It works as follows: For all new hires, after the date of hire but no later than the first day of employment, the employer must enter certain employee data into the EEVS. EEVS will then send a green light (hire is ok), a red light (no hire) or a yellow light. At the yellow light, where the EEVS cannot conclusively determine the status of a worker’s eligibility, a further action notice is issued and the individual must contact the appropriate federal or state agency to initiate resolution of status. During this time the individual continues to work while the agency resolves the status issue. If the employer then receives a final non-confirmation regarding an individual, the employer must terminate the employment of the individual unless the individual files an administrative appeal of a final non-confirmation notice within 15 days.

The proposed law also requires the DHS and the Social Security Administration to create a tamperproof, biometric social security card. We believe this card will include a fingerprint. Unfortunately, while the law will increase penalties and burdens on employers, there is still no method to prevent an illegal worker with a stolen, valid identity from being hired and properly processed through the EEVS system. Finally, employers will have increased subcontractor liability for the hiring processes and legal status for workers of companies with which they contract.

Temporary Workers Filling Temporary Needs

A new temporary “Y” worker program is designed to address future temporary labor needs and to discourage future illegal employment of undocumented individuals. Whether the position is agricultural, seasonal or non-seasonal, when a U.S. employer is unable to find a U.S. worker for a position, the U.S. employer can register the need in a government database and the database will match the employer with a willing worker from abroad.

It is likely that these visas will be valid for a two-year period in the United States, followed by a one- year period in the home country. Also, while these temporary visas are based on a Department of Labor documented shortage of U.S. workers, the Senate is likely to put a cap on the number of these visas. Finally, a government commission will be created to make recommendations on the cap.

Green Card / Permanent Residence Process and Criteria

The current green card/permanent residence system will be significantly altered. There will be a point- based merit system under this law. The current labor certification system, where an employer seeks a worker with very specific skills, will be replaced by this government designated merit-point system.

For family cases, once all the current cases in the system are completed (about eight years), all new family cases will be based upon this point system and preferences will be given to spouses and children under the age of 21. Other family members, such as adult children, parents, etc., will have fewer green card options then under the current system.

Individuals Currently Living Illegally in the United States

The most controversial section of the proposed law creates a new visa for most individuals currently living illegally within the United States. This new four-year, renewable “Z” nonimmigrant visa has three categories: principal or employed alien (Z-1), spouse or elderly parent of that alien (Z-2) and minor children of that alien (Z-3).

To be eligible for this Z visa, one must have been illegally present within the United States before January 1, 2007. There will be fees and penalties to apply and register for the Z visa status. The amounts of these fees are still being debated, but they hover around $5,000. Also, an applicant must be employed and pay back taxes.

Upon registration, there is an initial probationary period during which an applicant submits a completed application and fingerprints and clears a background check. He or she will receive probationary benefits that can eventually be converted to a Z nonimmigrant status after all background checks are clear and the border triggers are achieved. Eventually, in about eight years, if still eligible, a Z visa holder can apply for a green card. Again, new fees are paid (about $4,000 per person) and another background check is processed. Other requirements may well be added.

Finally, individuals that are in the United States illegally, but were brought to the United States as minor children, will have a faster track to a green card.

Miscellaneous Provision

There are a number of miscellaneous provisions involving assimilation process for immigrants to the United States.