On June 27, 2013, the Senate passed the "Border Security, Economic Opportunity, and Immigration Modernization Act." Also known as Senate Bill No. 744 ("S. 744"), this legislation is a broad-based proposal for comprehensive immigration reform ("CIR") of the entire U.S. immigration system. Originally written by a bipartisan group of eight Senators (known as the Gang of Eight), the bill contains five broad titles that address almost every aspect of the immigration process from border security to employer enforcement. These titles can be summarized as follows:
- Title 1: Border Security
This section of S. 744 addresses the issues of border security, border oversight, and the security goals ("triggers") that must be achieved before the provisions of S. 744 relating to the legalization of undocumented aliens can be implemented. At the heart of this title of the legislation is its enormous investment into border security, including:
- the addition of a substantial number of new border patrol agents;
- implementation of mandatory electronic exit systems at all ports;
- the addition of another 700 miles of border fencing;
- the hiring of additional prosecutors, judges, and support staff;
- the development and implementation of technological advances to monitor the borders; and
- the addition of surveillance equipment required to maintain 24-hour monitoring of the borders.
S. 744 will require $43 billion to fund these security measures.
One of the primary objectives of S. 744 is to provide a path to legalization for undocumented aliens. The bill does this by establishing a new status for them called "Registered Provisional Immigrant" ("RPI") status. Before any RPI can apply for permanent residence, however, the new security measures must be implemented along the "Southern border" (the international border between the United States and Mexico), all employers must enroll in the E-Verify program, the electronic exit-entry system must be implemented, and at least 38,405 full-time border patrol agents must be deployed on the Southern border. All of this will be supervised by an independent DHS Border Oversight Task Force, which will consist of 29 members appointed by the President, including 12 from the "Northern border" (the international border between the United States and Canada) region and 17 from the Southern border region. This Task Force also will be charged with making recommendations on new or revised border enforcement policies and procedures.
- Title II: Immigrant Visas
This section of S. 744 addresses the provisions of the immigration laws that define the processes and procedures for securing permanent residence in the United States. Specifically, this section creates the RPI program for undocumented aliens and also includes provisions of the DREAM Act relating to undocumented young aliens brought to this country illegally as minors.
In addition, this section creates a controversial merit-based point system that will allow FNs to obtain permanent residence by accumulating points based on their skills, employment history, and education. This system would do the following:
- replace those provisions of current law that allow siblings and the adult married children of Americans to qualify as well as the current diversity lottery;
- eliminate current family-based quota backlogs by 2021;
- allow the parents of American citizens to bring their minor children with them when they immigrate; and
- permit immediate reunification of the spouses and minor children of permanent residents.
This system promises to affect the immigration strategies of many employers that seek to attract or retain FNs.
On the employment-based immigrant side, S. 744 eliminates the country-specific quota limits on green cards that have caused enormous backlogs for applicants from larger countries, such as China and India. This section of the bill will also exempt certain highly skilled and exceptionally talented FNs from the worldwide quota and, thus, free up additional numbers for those in line. Finally, S. 744 exempts FNs with STEM (science, technology, engineering, and math) degrees from the labor certification requirement and, therefore, facilitates their path to permanent residence.
- Title III: Interior Enforcement
This section of S. 744 addresses enforcement and requires all employers to use E-Verify, but phases in this requirement over five years depending on the employer’s size. This mandatory use of E-Verify would specifically preempt any state or local laws that contain provisions relating to this process. S. 744 also creates a mandatory exit and entry system at all airports and seaports to track the arrival and departure of FNs. Finally, this section of the bill makes changes in the removal process and the legal provisions that define who is eligible for immigrant or nonimmigrant visas based on their prior immigration, medical, or criminal history.
- Title IV: Nonimmigrant Visas
This portion of S.744 makes changes to the nonimmigrant provisions of the immigration laws, which will affect many employers. The most significant proposal relates to changes in the H-1B and L-1 visa programs. In the H-1B area, S. 744 raises the quota for H-1B visas to one that fluctuates between 115,000 and 160,000 based on a market escalator formula that reflects employer demand and unemployment data. S. 744 also places added burdens on H-1B employers by raising the lowest wage that H-1B workers must receive, requiring employers to recruit before H-1B petitions can be filed, and placing additional limitations on employers where the H-1B workers might displace U.S. workers. In the L-1 area, S. 744 places further restrictions on the ability of employers to place L-1 visa holders off site with other employers.
S. 744 also creates a new "X" investor nonimmigrant visa for foreign entrepreneurs. To qualify, the FN must invest at least $100,000 in the business, and the business must create at least three jobs over two years and generate at least $250,000 in annual revenues by the end of its second year of operations. S. 744 also creates a new "W" nonimmigrant visa classification for less-skilled, non-seasonal, nonagricultural workers, such as those typically hired in the hospitality industry. The program would be administered by a new entity, the Bureau of Immigration and Labor Market Research, which will designate shortage occupations and provide data recommendations. "W" workers would be admitted for up to three years but could seek an extension for an additional three years.
- Title V: Youth Jobs
This section of S.744 creates a Youth Jobs Fund dedicated to creating employment opportunities for low-income youths. Additionally, $1.5 billion would be allocated to the Youth Jobs Fund and would be recouped by a surcharge to employment-based immigrant and nonimmigrant visas.
The Senate’s passage of S. 744 now places the issue of CIR in the House of Representatives, where its future is less than certain. In an effort to enhance its prospects, the White House just issued a report entitled "The Economic Benefits of Fixing our Broken Immigration System" (available at http://www.whitehouse.gov/sites/default/files/docs/report.pdf), which was prepared by the National Economic Council, the Domestic Policy Council, the President’s Council of Economic Advisors, and the Office of Management and Budget. According to this report, S. 744 will benefit the U.S. economy in several respects, including:
- strengthening the overall economy and growing U.S. gross domestic product;
- fostering innovation and encouraging job creation and growth;
- increasing worker productivity and protections; and
- decreasing budget deficits and providing new workers to replace an aging population that will strengthen Social Security.
It remains to be seen how the House responds as the White House and various advocacy groups urge support for this legislation.