On April 17, 2013, a bipartisan group of eight Senators introduced major Comprehensive Immigration Reform (CIR) legislation. The "Border Security, Economic Opportunity and Immigration Modernization Act of 2013" represents a once-in-a-generation legislative effort to reform and modernize the U.S. immigration system. The bill would provide a path to citizenship for the estimated 11 million persons in the U.S. without authorization. It would enhance border security and employer work authorization verification requirements. New work visa categories would allow lesser-skilled persons to enter the U.S. lawfully to work; H-1B high-skilled visa numbers would be increased. The allocation of green cards would shift away from primarily family-based categories to employment- and merit-based categories. This legislation, which is generally consistent with the CIR framework President Obama favors, includes the following highlights:
- Within 180 days after enactment, the Department of Homeland Security (DHS) would be required to propose a plan to secure the southern U.S. border.
- Money would be allocated for more Border Patrol officers, aerial and ground surveillance technologies, and fencing.
- Targets to determine border security are 100 percent operational awareness of activities along high risk sectors of the border and 90 percent apprehension of illegal entrants in high risk sectors.
- An exit tracking system would be implemented so that DHS knows whether persons who entered the U.S. with visas have left the U.S.
- Persons physically present in the U.S. without authorization as of December 31, 2011, would be allowed to apply for Registered Provisional Immigrant (RPI) status. Persons with RPI status would be allowed to work in the U.S. and travel abroad.
- RPI applicants would be required to pay a $500 penalty, back taxes and filing fees to register. Persons with significant criminal history would not be eligible for RPI status.
- RPI status would be granted for six years, with opportunity to file for renewal. Renewal would require new penalty fees and filing fees.
- After 10 years in RPI status, RPIs may apply for permanent residency (green card status) in any green card category for which they may qualify. The applicant must pay a $1,000 penalty and show knowledge of English and civics. Permanent resident status may not be granted until the border has been determined to be secure and all current green card backlogs are cleared.
- After three years as a permanent resident, legalized persons could apply for U.S. citizenship.
Employer Verification of Work Authorization
- Presently, all employers must use the I-9 form to verify the work authorization status of new employees. The electronic E-Verify system is optional. The legislation would require all employers to use the electronic E-Verify system.
- The E-Verify requirement would be phased in over five years, from large employers to small.
Permanent Residency (Green Cards)
- Expedite provisions would clear out the current backlog of millions of persons waiting for green cards.
- The allocation of green cards would shift from a predominately family-based system to a system more balanced among family-, employment- and merit-based green card categories.
- Certain groups would be exempt from green card quotas: persons of extraordinary ability, outstanding professors and researchers, multinational managers and family members of employees. These exemptions would free up green card spots for employees.
- A new green card category for persons with U.S. advanced degrees in science, technology, engineering and math (STEM) fields would be created.
- A new merit-based green card category would be created that will evaluate applicants based on factors such as education, skills, length of residence in the U.S. and family ties. It is anticipated that legalized RPIs would apply for green cards in this category.
- A new startup visa would be created to enable foreign entrepreneurs to come to the U.S. to start a business.
H-1B Temporary Worker Visas for Professionals
- The current 65,000 annual H-1B visa cap would be raised to 110,000 and could gradually go up to 180,000 if there is sufficient demand.
- The current 20,000 cap exemption for persons with U.S. advanced degrees would be raised to 25,000 but would be limited to persons with U.S. advanced degrees in STEM fields.
- H-1B employers would be required to pay higher wages and would be required to advertise for U.S. workers for 30 days before filing an H-1B petition.
- Spouses of H-1B workers would be allowed to work in the U.S. if their home country allows spouses of U.S. workers in that country to work.
- H-1B workers would be allowed a 60-day transition period to change employers without losing status.
- Companies with a high percentage of H-1B workers would have to pay higher wages, higher fees and may be blocked from hiring additional H-1B workers.
New W Visa for Lesser-Skilled Positions
- Employers who cannot find sufficient U.S. workers for lesser-skilled positions (positions requiring less than a bachelor's degree) may receive authorization to employ foreign workers with W visas.
- The employer must first undertake required recruitment steps to try to find U.S. workers. If not successful, the employer may apply to register a position opening for a period of three years. The opening would be registered in a database.
- Employers would have to pay W workers at market wage levels.
- Foreign nationals would apply for W visas at U.S. consulates abroad. They would then be matched with registered openings and come to the U.S. to work. W visa employees would not be tied to the initial employer, but could move to another employer with a registered position.
- No W visa holder would be authorized to work in a metropolitan area that has an unemployment rate above 8.5 percent, unless the occupation was designated as a shortage occupation.
- In the first year, 20,000 W visa spots would be available. In the next three years, the cap would rise to 35,000; 55,000; and then 75,000. After that, a bureau would adjust the annual cap based on economic factors, up to a maximum of 200,000.
- If a W visa worker would not otherwise be available because of the cap or the 8.5 percent unemployment limitation, an employer would still be able to get authorization to employ a W visa worker if the employer conducted additional recruitment activities and paid a higher wage.
- Construction industry employers would be limited in their use of the W visa program.
New Work Visa Category for Agricultural Workers
- A new work visa category would be created for agricultural workers.
- Employers would register to employ agricultural workers under the program.
- The annual cap would be initially set at 112,333.
- Agricultural workers would be admitted for an initial period of three years and would be eligible to apply for a three-year extension of stay.
- Employers would be required to pay wages established by DHS.
The bill will now be reviewed by the Senate Judiciary Committee prior to consideration by the full Senate. The bill's sponsors hope for Committee action in May and full Senate approval by June.