On June 27, 2013, the Senate passed a comprehensive immigration reform bill to overhaul the U.S. immigration system and extend legal status to millions of undocumented immigrants, expand legal immigration, and increase border security. The Senate voted 68-32 in favor of final passage of S.744, the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.” The bill received strong support in the Senate following weeks of amendments by the Senate Judiciary Committee and bipartisan negotiations in the Senate. The amended bill retains many of the significant provisions included within the original legislation, which was introduced on April 17, 2013, and summarized in our client alert on April 23, 2013. Despite receiving strong support in the Senate, the bill must still undergo approval by the Republican-led House, where it is expected to face much greater resistance. It is also possible that the House would introduce its own bill with different provisions, which would have to be reconciled with the Senate bill, if it were to pass the House.

Among many of the amendments that were made to the original legislation, below is a high-level summary of certain provisions of interest:

A. Mandatory use of E-Verify for employment verification

The amended bill maintains the requirement that all employers must use the E-Verify employment verification system to prevent the hiring of unauthorized aliens over a phase-in period. Amendments to the E-Verify requirement include:

  • The amended bill clarifies that employers of agricultural labor or services employees must use the E-Verify system for all new hires and employees with expiring employment authorization within four years from the date the regulations are published.
  • The amended bill requires that the employer and individual must be notified directly by email, mail, text, phone, or other direct communication in the event of a nonconfirmation of an individual’s identity and employment authorized status, or notice if further action is required to verify such identity or employment eligibility.
  • The bill requires a weekly report from USCIS to ICE regarding identifying information for anyone who received a final non-confirmation of an individual’s identity and employment authorized status through the E-Verify system to be used for enforcement purposes.
  • The bill requires annual error rate reports by the Department of Homeland Security’s Office of the Inspector General, and limits civil penalties for recordkeeping or verification practices to US$1,000 in any year after an error rate above 0.3 per cent was found.
  • The Department of Homeland Security must make arrangements for employers and employees who are otherwise unable to access E-Verify to use other technology and/or facilities to do so.
  • The amended bill removes an affirmative defense from the original bill for employers who made E-Verify inquiries but did not receive verification within a designated time period. 

B. Highly-skilled temporary workers, investors, and retirees

  • The amended bill further increases the annual H-1B cap
    • The base H-1B cap will increase from 110,000 in the original bill to 115,000, and maintains the ceiling of 180,000 for the H-1B cap.
  • The amended bill eliminates the “High Skilled Jobs Demand Index” formula that was proposed in the original bill. Instead, the amended bill sets forth a formula for calculating the H-1B cap on the basis of “allocated adjustment.”
    • The H-1B cap can be no more than the sum of the base plus the allocated adjustment, which is calculated on a sliding scale, depending on when in the fiscal year USCIS accepted enough petitions to reach the base.
    • The cap cannot be increased through the allocated adjustment if the national unemployment rate for “Management, Professional and Related Occupations” averages about 4.5 per cent for the prior 12 months.
  • The bill establishes additional requirements for employers of H-1B or L-1 employees.
    • Imposes additional fees of US$1,250 per H-1B or L-1 petition for employers with up to 25 full-time equivalent employees, and US$2,500 per H-1B or L-1 petition for employers with more than 25 full-time equivalent employees. Nonprofit research institutions and nonprofit educational institutions are exempted from the additional fee.
    • Defines an “H-1B skilled worker dependent employer” as at least 15 per cent of its full time equivalent employees in the U.S. being H-1Bs in O*Net job zones 4 and 5. Nonprofit education and research institutions are excluded from this definition, as well as from the definition of H-1B dependent employer.
  • The amended bill places further restrictions on outplacement/outsourcing/leasing of H-1Bs and L-1s
    • Maintains the prohibition on the outplacement or outsourcing of H-1B employees by H-1B dependent employers. Non-H-1B dependent employers who outplace are required to pay a fee of US$500 per outplaced worker.
    • Maintains provisions that H-1B dependent non-profit institutions of higher education, nonprofit research organizations, and certain employers primarily engaged in the healthcare business are exempt from the outplacement prohibition, but must pay the US$500 fee for such outplacement.
    • Employers with more than 15 per cent of their full-time equivalent employees in L-1 status are prohibited from all outplacement.
    • Adds a provision on “Transparency of High-Skilled Immigration Programs,” and requires reports on demographic information on H-1B and L-1 beneficiaries, on details about their employers, and on H-1B and L-1 dependent employers. The amended bill also requires that the Department of Labor survey L-1 employers on their recruitment methods for occupations for which the nonimmigrants are sought.
  • The amended bill addresses several provisions concerning nonimmigrant student visas:
    • Authorizes “dual intent” for F-1 aliens who are pursuing bachelor’s or graduate degrees. This would eliminate the need for international students to prove their intention to leave the country upon completion of their studies.
    • Requires real-time transmission of data from the Student and Exchange Visitor Information System (SEVIS) to databases used by U.S. Customs and Border Protection at border checkpoints within 120 days of the bill’s enactment.
      • Suspends the issuance of form I-20s to foreign students if the deadline is not met.
    • Require all colleges, universities, and language training programs approved by the U.S. Department of Homeland Security to accept foreign students to be accredited by a regional or national accrediting agency recognized by the Secretary of the U.S. Department of Education.
    • Creates the Student Visa Integrity Act, which among other requirements, increases criminal penalties for visa fraud if offense is committed by the owner/official of an educational institution that participates in the Student and Exchange Visitor Program (SEVP); requires institutions accepting F-1 students to be accredited; imposes penalties for failure to comply with SEVIS reporting requirements; mandates withdrawal of SEVP certification for certain violations or loss of accreditation; mandates termination if school owner/official is indicted for visa fraud.
    • Provides consular officers with access to all terrorist databases and requires heightened scrutiny of applications for admission from persons listed on terrorist databases.

C. Mandatory exit system

  • The amended bill requires the Department of Homeland Security to report all visa overstays to the appropriate law enforcement, intelligence, or national security agency, or other component of the Department of Homeland Security, and requires “reasonably available enforcement resources” to be used to locate the alien and commence removal (deportation) proceedings against the alien.
  • Requires a mandatory biometric exit data system (in addition to regular exit data collection) to be used at 10 airports after 2 years, with an escalation clause for additional airports to be added over a period of time.

D. Employment-based and investment-based immigrants

  • The amended bill would allow for concurrent filing of adjustment of status (I-485) applications with the immigrant petitions (I-140) even if the person's priority date is not current, provided that a US$500 fee is paid (of course, the adjustment application could not be approved until the priority date becomes current).
    • The amended bill also would allow for a “portability” after the immigrant petition is approved so that a person could change jobs without impacting his/her pending green card process so long as the new position is in the same or similar occupational classification (an I-485 application pending for 6 months would no longer be a part of the requirement for such “portability” which will provide significant flexibility to applicants).
  • The amended bill contains provisions relating to EB-5 Visa Reforms
    • Allows for premium (expedited) processing of investor petitions and for concurrent filing of adjustment of status (I-485) applications, which should result in reduced processing times for these types of cases.
    • Provides for permanent authorization of the EB-5 regional center program (replacing the current requirement for periodic congressional extension of the program), and would introduce other procedural requirements to facilitate adjudication of regional center petitions.
    • Sets aside not fewer than 5,000 of the visas made available in each fiscal year reserved for individuals investing in a new commercial enterprise in a targeted employment area (TEA).
    • Adjusts the minimum EB-5 investment automatically on January 1, 2016, by the percentage change in the Consumer Price Index during FY2015.

E. Legalization of undocumented non-agricultural workers

The amended bill maintains the detailed eligibility criteria for aliens who are unlawfully present in the United States to adjust their status to Registered Provisional Immigrant (RPI) status (essentially providing a path to green card and ultimately United States citizenship). Additionally, the amended bill requires the following:

  • For the spouse or child of an RPI to receive RPI status, in addition to other requirements, they must maintain continuous presence in the U.S. from December 31, 2012, until the RPI is granted status, except for brief, casual, and innocent departures, whether or not authorized by DHS.
  • Requires a determination of whether a waiver-eligible RPI applicant has a conviction for a criminal offense, identification of each victim of the criminal offense and provide each victim with notice of the potential waiver, and notification to each victim if a waiver is actually granted.
  • Requires additional security screening, based on national security information, if an RPI applicant or dependent spouse or child is or was a citizen or long-term resident of a country or region known to pose a national security threat.
    • Requires the Secretary to make a list of countries that pose a threat to the national security of the U.S. and to subject anyone who was a citizen of those countries to additional security screenings before granting RPI status.
    • Requires RPI to undergo additional background check at time of extension of RPI status.

F. Legalization of undocumented agricultural workers

The amended bill maintains the provisions for legalization of undocumented agricultural workers in the United States (and ultimately a path to green card and citizenship) by establishing an “Agricultural Worker Program” that allows undocumented farm workers who have made a “substantial prior commitment” to agricultural work in the United States to obtain legal status through an Agricultural Card (blue card) Program. Additionally, the amended bill provides the following:

  • Spouses and children are eligible for blue card status if physically present in the U.S. on December 31, 2012, and maintained continuous residence from that date until the date the principal alien is granted blue card status, except for brief departures, whether or not authorized by DHS.
  • An alien shall be able to submit an application for blue card status if the applicant is represented by an attorney, nonprofit religious, charitable, social service, or similar organization.
  • Employment records provided by the alien or alien’s employer that are used to support a blue card status application may not be used against the employer in a civil or criminal prosecution or investigation for unlawful employment of aliens.
  • Allows qualified nonimmigrants who have participated in the H-2A program to apply for blue cards from outside of the U.S.
  • Maintains that the blue card status is effective for a period of eight years, but provides that no extension of the blue card status will be possible after the eight year period of validity.
  • Legitimate employment records provided by the alien or employer in support of a blue card application may not be used against the employer in a civil or criminal prosecution for past unlawful employment of aliens.

G. Border security

The Senate approved a controversial border security amendment introduced by Senators Bob Corker (R-Tenn.) and John Hoeven (R-ND).

  • The amendment doubles the number of Border Patrol agents from 20,000 to 40,000, devotes billions of dollars to enhanced surveillance equipment and increases the amount of border fencing required by the original bill from 350 to 700 miles.
  • Significantly, it would also require all enhanced border security elements to be in place and operational before the 11 million undocumented immigrants currently living in the U.S. could obtain legal status.