As Congress returns to the Hill after a recess, many are asking what will happen to Comprehensive Immigration Reform (CIR). Little movement has occurred since the end of June when the Senate passed Senate Bill 744, but the House of Representatives is expected to take some sort of action in September or October. Among its possible actions, the House might consider S.B. 744, create its own new CIR bill, pass various piecemeal legislation or refuse to act in any way. Passage of piecemeal legislation is the most anticipated action.
There are several common themes that exist in S.B. 744 and in the handful of bills passed out of House committees. Many, which we will highlight here, will have an impact on employers if they move forward.
Increased Allotment of H-1B Visas
Both S.B. 744 and H.R. 2131 propose to increase the number of H-1B visas available each year. H-1B visas allow employers to obtain work authorization for professional-level employees. Employers use the H-1B classification for engineers, accountants/financial analysts, scientists, IT consultants and physicians. Under the current law, only 85,000 new H-1Bs are available each year (with 20,000 of those set aside for foreign nationals holding a master’s degree or higher from a U.S. university). These numbers do not meet the demand. This year, U.S. Citizenship and Immigration Services (USCIS) received approximately 124,000 petitions in the first week of filing, necessitating that it conduct a lottery to select the petitions for processing. Both the Senate and House have proposed an increase that could approximately double the number of H-1B visas available each year.
E-Verify is an internet-based system employers can use to confirm work authorization and identity of new hires. The system compares information provided by an employee to data from the U.S. Department of Homeland Security and the Social Security Administration. After comparing the information, E-Verify ultimately issues a confirmation or nonconfirmation of the individual’s work authorization. While the system will not capture all forms of unauthorized workers, it does provide employers with more assurances that their workforce is legal, and participation shows a good faith effort to achieve compliance with the obligation to have a legally authorized workforce. While many states have made E-Verify mandatory for all employers, it is currently voluntary under federal law (except for companies holding certain types of federal contracts). Both S.B. 744 and H.R. 1722 require that all employers use E-Verify, with registration staggered over a period of time according to company size.
Work Authorization for Spouses of H-1B Employees
Spouses of H-1B workers can obtain a derivative status – H-4 – that allows an H-1B worker’s foreign national spouse to accompany the worker to the United States. The H-4 status does not, however, allow work authorization for the spouse. If the spouse wants to work in the United States, he or she must find an employer willing to support this (i.e., possibly sponsor him/her for H-1B status, etc.). This is unlike some other employment-based classifications (i.e., L, E, J, etc.) that grant work authorization to the accompanying spouse. Under both S.B. 744 and H.R. 2131, H-1B workers’ spouses could apply for work authorization based solely on being the spouse of an H-1B employee. This will help U.S. employers retain H-1B workers who hold professional-level roles in the United States.
Path to Permanent Residency (i.e., the Green Card)
While the Senate and House have vastly different approaches to how the path to a green card would change, both seem to recognize that some change is needed. S.B. 744 provides a path to citizenship for certain individuals who are currently in the United States illegally and also overhauls the current green card system with a merit-based point system under which individuals accumulate points based on skills, employment history, educational credentials, family ties, etc. While H.R. 2131 contemplates less of an overhaul of the current system, it does away with the per-country caps for employment-based visas. Both S.B. 744 and H.R. 2131 eliminate the Diversity Immigration Visa Program – a path that allows individuals from countries with low rates of immigration to the United States who meet strict eligibility requirements – to apply for a lottery. This will remove the one path to a green card that is not contingent on employment prospects or family ties and is based solely on country of birth.
Other Provisions in S.B. 744
S.B. 744 contains other key provisions that could have a significant impact on U.S. employers, particularly those who sponsor individuals for work authorization. S.B. 744 also:
- Implements a new prevailing wage system for H-1B employers that would likely result in increased wage requirements for H-1B workers.
- Requires all H-1B employers to recruit U.S. workers for the job before filing the H-1B petition.
- Prohibits outplacement of H-1B employees by companies that have high percentages of H-1B workers.
- Requires all H-1B employers to pay an additional fee for outplacement (certain employers such as nonprofit and health care organizations are exempt).
- Allows increased portability (i.e., ability to change employers) for employees who are in the green card sponsorship process.
- Limits the ability of companies to place global transfers to the United States under an L- 1 visa with other employers.
While CIR is still in a state of uncertainty, the impacts on U.S. employers could be significant. Thompson Hine will continue to monitor CIR activity and update our clients.