Category Archives: Immigration Reform

Part Eleven: E-Verify Provisions

Amends INA §274A to expand use of E-Verify and make it mandatory for all employers over a period of five years.

Making Employment of Unauthorized Aliens Unlawful

· Prohibits employers from hiring, recruiting, or referring for a fee an alien known to be unauthorized for employment in the U.S.

· Prohibits employers from hiring, recruiting, or referring for a fee without complying with document verification and other E-Verify system requirements.

· Prohibits continued employment of unauthorized aliens.

· Prohibits the consideration of previous unauthorized status for hiring purposes.

· Prohibits employers from using contracts, subcontracts, or exchanges to obtain the labor of an alien known to be unauthorized.

· Employers can rely on a state employment agency’s referral if employer retained appropriate documentation certifying that the agency complied with document verification requirements.

· Establishes good faith affirmative defense for employers who have complied in good faith with document verification and E-Verify system requirements.

o Employer who made E-Verify inquiry but did not receive verification within the designated time period has good faith defense if he or she timely records the reasons for continuing to employ the individual.

o Employers who are not required to participate in E-Verify or are participating on a voluntary basis also have an affirmative defense.

o A technical or procedural failure to meet an E-Verify requirement still constitutes compliance if the employer made a good faith attempt to comply with the requirement.

o Does not include failures that are not de minimis if the employer has been given at least 30 days to voluntarily correct the errors and has not done so.

o Does not apply to employers who engage in a pattern or practice of violations.

o After the date on which an employer is required to use E-Verify, he or she will be presumed to have acted with knowledge in hiring an alien who lacks work authorization if he or she failed to use E-Verify.

Attestation after Examination of Documentation

· Requires employer to attest that he or she has verified the identity and employment authorization status of an individual by examining certain documents and using an identity authentication mechanism. USCIS must publish pictures of acceptable documents on its website.

· Within six months of enactment, DHS will make available an attestation form that an employer may complete in paper form, via telephone, or electronically.

o Employer must sign attestation form with a handwritten, electronic, or digital pin code signature.

o An employer will be deemed to have complied with document verification requirements if he or she has, in good faith, followed applicable regulations and if a reasonable person would conclude that the documentation is genuine and relates to the individual presenting it.

  • · Specifies documents that establish both identity and employment authorization:

o U.S. Passport or passport card;

o Document demonstrating alien is lawfully admitted for permanent residence or another document showing work authorized status with a photograph of the bearer and other security features;

o An enhanced driver’s license or identification card issued by a U.S. state, or federally recognized Indian tribe that meets REAL ID Act 2005 requirements and has been certified for use by the Secretary;

o A foreign passport accompanied by a Form I-94 or Form I-94A (or similar successor form), or other appropriate documentation designated by Secretary;

o A passport issued by Federated States of Micronesia or the Republic of the Marshall Islands with evidence of nonimmigrant admission in to the U.S.

· Specifies documents that establish identity:

o Driver’s license or identity card that includes photograph, name, DOB, gender, driver’s license or identification card number, as well as security features;

o Voter registration card;

o A document that complies with the requirements of the Intelligence Reform and Terrorism Prevention Act of 2004;

o Alternative documents established by the Secretary for those under 18.

· Specifies documents that establish employment authorization:

o Social Security card, other than one that is not valid for work authorization;

o Any other document that the Secretary publishes in the Federal Register if such document contains appropriate security features.

· Requires employers to use an identity authentication mechanism once it becomes available.

o “Covered identity document” means a valid U.S. passport, passport card, document evidencing lawful permanent resident status or employment authorized status, enhanced driver’s license or identity card issued by a participating state, or photograph with appropriate identifying information provided by DOS pursuant to the granting of a visa.

o “Participating state” means a state that has an agreement with the Secretary to provide, for purposes of identity verification in the E-Verify, photographs and other identifying information.

o Establishes a photo tool that enables employers to verify an individual’s identity by matching a photo on a covered identity document with a photo in a USCIS database.

o An employer seeking to hire an individual whose identity may not be verified using the photo tool shall verify the identity of the individual using additional security measures, which the Secretary must develop after publication in the Federal Register and opportunity for public comment.

· Secretary may, after publication in the Federal Register, opportunity for public comment, and notice to employers: (1) prohibit or restrict use of certain documents considered unreliable, and (2) allow the use of additional documents or classes of documents, which must be published on USCIS website.

· Individual Attestation of Employment Authorization: Requires individuals, upon commencing employment, to attest under penalty of perjury that they are authorized to work in the U.S. using a handwritten, electronic, or digital pin code signature, and to provide their Social Security numbers.

· Retention of Verification Records: Requires employers to retain verification records for three years after hiring or one year after termination, whichever is later. The forms may be retained electronically.

· Copying of Documentation and Recordkeeping: Allows Secretary to promulgate regulations regarding copying and retaining documents and related information.

· Penalties: An employer that fails to comply may be penalized (as outlined below).

· Civil Rights Protections: Preserves the application of existing civil rights laws to E-Verify system and prohibits discrimination in document verification.

· Receipts: Permits the use of receipts for replacement documents and temporary evidence of employment authorization to meet documentation requirements for up to 1 year.

· National Identification Card: Does not authorize the creation of a national identification card.

274A(d) Employment Verification System:

· Requires DHS, in consultation with SSA, to establish an Employment Verification System and monitor use and misuse of the System, including speed, error rates, discrimination, security, integrity, and privacy.

· Requires DHS to give individuals direct access to their case histories in the System.

· Allows DHS to develop protocols for notifying individuals when their records have been queried and for individuals to submit queries and notifications of potential identity fraud.

274A(d)(2) Participation Requirements

· Requires participation by all federal government agencies and departments beginning on the date of enactment (if already required to participate) or 90 days after date of enactment.

· Requires participation by federal contractors as provided in the final rule currently requiring their participation or subsequent regulations.

· Beginning one year after implementation, allows DHS to require participation by critical infrastructure employers, provided that they receive 90 days’ notice.

· Requires employers with more than 5,000 employees to use system for all new hires and employees with expiring employment authorization no later than two years after publication of implementing regulations.

· Requires employers with more than 500 employees to use system for all new hires and employees with expiring employment authorization no later than three years after publication of implementing regulations.

· Does not require employer participation with respect to agricultural labor or services employees until four years after the date of enactment of the Legal Workforce Act.

· Requires all employers to use the system for new hires and employees with expiring employment authorization no later than four years after publication of implementing regulations.

· Requires DHS to implement rules governing tribal government employers; requires these employers to use the system to verify new hires and employees with expiring employment authorization no later than five years after those regulations are published.

· May require employers who have violated sections 274A or 274C to participate in E-Verify even if not already required to do so; may require employers who have engaged in a pattern or practice of violations to use System with regard to current employees as well as new hires.

· Allows any employer to voluntarily participate in E-Verify.

Consequences of Failure to Participate: Provides that, outside of a de minimis or inadvertent failure, failure to participate in E-Verify where required is a civil violation and creates a rebuttable presumption of additional civil violations. Evidence regarding an employer’s noncompliance with E-Verify requirements may be used in federal criminal proceedings.

Procedures for Participants: Requires employers to register with E-Verify before using it, update their information as needed, and participate in mandatory trainings. Employer must notify new hires that it is using E-Verify. The employer must also obtain and record in a manner specified by DHS the employee’s social security number, proof of citizenship or noncitizen nationality, and other information that DHS may require to determine identity and employment authorization.

Seeking Confirmation: Requires employers to confirm identity and employment authorized status between the date when an individual accepts an employment offer and three business days later, or during another period prescribed by DHS.

· Bars employer from making start date or any other term of employment contingent on E-Verify confirmation.

· Requires reverification of temporary employment status no later than three business days after the last day of authorized employment.

· For critical infrastructure employers and others required to verify their entire workforce, employer must conduct verification on or before date specified by DHS.

· Requires DHS to establish method of notifying employers of confirmation, non-confirmation, or further action notice.

· Requires DHS to establish procedures to directly notify the individual and employer of the results and to provide information about the appeals process.

Confirmation or NonConfirmation:

· Requires that E-Verify provide confirmation or further action notice at the time of the inquiry or not more than three days later. An employer must record a confirmation in the manner specified by DHS. In the event of a further action notice, the employer must notify the employee within three business days of receipt or during another period established by DHS, of the notice and any procedures required to address the notice. The individual must acknowledge in writing the receipt of the notice; employers must notify DHS of an individual’s failure to acknowledge or decision not to contest a further action notice.

· Individuals contesting further action notices must contact appropriate federal agency within 10 business days of receiving the notice. DHS may require the person to appear in person for purposes of verifying identity and employment eligibility using a secondary verification procedure.

· If a further action notice is not contested or acknowledged within the required time period, a nonconfirmation will be issued. The employer must record the nonconfirmation and terminate the individual’s employment.

· Unless DHS grants an extension, E-Verify must provide a confirmation or nonconfirmation no later than 10 business days after an individual contests a further action notice.

· DHS may establish procedures for reexamining confirmations or nonconfirmations in the event that subsequent information is received.

Employee Protections: An employer may not terminate employment or take any other adverse action against an individual based solely on lack of employment verification unless (1) a nonconfirmation has been issued; (2) a further action notice was issued, and the individual failed to file an administrative appeal within the permissible time period; or (3) an administrative appeal was filed, and the nonconfirmation was upheld.

Notice of NonConfirmation: Not later than three business days after receiving a nonconfirmation or during another period specified by DHS, an employer must notify the applicant in writing, provide information about filing an administrative appeal and requesting a hearing before an ALJ, and attest (through the E-Verify system) that he or she has done so. The individual must acknowledge receipt of the notice in writing or in another manner prescribed by DHS.

Consequences of NonConfirmation:

If an employer has received a nonconfirmation and has made a reasonable effort to notify the individual, employment must be terminated after the expiration of the time period specified for filing an administrative appeal and for requesting a hearing before an ALJ. If the employer does not terminate the employee, a rebuttable presumption is created that the employer knowingly hired an alien who was not authorized to work. This presumption does not apply to criminal prosecutions. If an individual files an administrative appeal or requests review by an ALJ, the employer may not terminate the individual prior to resolution of the appeal unless DHS terminates the stay of the nonconfirmation.

Obligation to Respond to Queries and Additional Information:

· Employers must comply with requests for information from DHS and DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices, including queries regarding current and former employees, within the time frame during which records are to be maintained, if the inquiry relates to the functioning of the System, the accuracy of the responses provided, or any suspected misuse, discrimination, fraud, or identity theft.

· Failure to comply constitutes a violation of the employer’s obligation to comply with the requirements of the E-Verify system.

· Individuals may be required to take further action to address questions identified by DHS or SSA regarding the documents relied on for verification.


Civil Penalties

o $3,500 to $7,500 per worker for knowingly hiring, recruiting, referring for a fee, or continuing to employ an unauthorized alien

§ $5,000 to $15,000 per worker, for second-time violators

§ $10,000 to $25,000 per worker, for multiple-time violators

o $500 to $2,000 per violation for failure to comply with document verification or E-Verify use requirements, except for minor or inadvertent failures

§ $1,000 to $4,000 per violation, for second-time violators

§ $2,000 to $8,000 per worker, for multiple-time violators

· Permits enhanced penalties for failure to use the system or for violation of federal, state or local labor laws after E-Verify becomes mandatory for all employers.

· Allows DHS to impose additional penalties, including cease and desist orders, compliance plans, and suspended fines.

Part Ten: Citizenship and Integration Provisions

INITIAL ENTRY, ADJUSTMENT, AND CITIZENSHIP ASSISTANCE GRANT PROGRAM.

Creates Initial Entry, Adjustment, and Citizenship Assistance grants to support the implementation of programs that provide direct immigration assistance to the following people:

· Individuals preparing applications for RPI status, including applying for waivers;

· Individuals adjusting status to RPI, blue card, or green card status;

· LPRs seeking to naturalize;

· Applicants seeking civics and English assistance.

PILOT PROGRAM TO PROMOTE IMMIGRANT INTEGRATION AT STATE AND LOCAL LEVELS.

Establishes a pilot program to award grants to promote immigrant integration at state and local levels and to establish New Immigrant Councils. To apply, an entity must submit an application that includes a proposal, the number of immigrants in its jurisdiction, and a description of the challenges facing those immigrants in integrating into the community. Priority will be given to state and local governments that:

· Will use matching non-federal funds;

· Show collaboration with public and private groups;

· Are in the top 10 states with the highest rate of foreign-born residents; or

· Experienced a large increase in immigration in the past 10 years.


Governments can use a grant to do the following:

· Form New Immigrant Councils consisting of 15 to 19 stakeholders from various organizations;

· Provide subgrants to local organizations that will help:

o Improve English language skills;

o Engage parents with limited English in their child’s education;

o Improve access to workforce training;

o Teach civics and U.S. history;

o Improve financial literacy; and

o Engage receiving communities in the integration process.

Amends the requirements for naturalization to:

· Waive the English language and civics requirements for anyone who is over 65 years of age and has lived in the U.S. for a total of at least five years after being lawfully admitted for permanent residence.

· Waive the English language requirement for anyone who is over 60 years of age and has lived in the U.S. for a total of at least 10 years after being lawfully admitted for permanent residence.

· Allow the DHS Secretary (previously the Attorney General) to waive, on a case-by-case basis, the civics requirement for anyone who is over 60 years of age (previously 65) and has lived in the U.S. for a total of at least 10 years (previously 20) after being lawfully admitted for permanent residence.

Part Nine: Discretionary Authority with Respect to Removal/Inadmissibility of Certain Aliens

· Gives Immigration Judges and DHS officers discretion to terminate removal proceedings or waive inadmissibility with respect to a request for admission, respectively, in cases in which:

o Not doing so would be contrary to public interest;

o There would otherwise be hardship to the noncitizen’s U.S. citizen or LPR parent, spouse, or child; or

o The non-citizen is prima facie eligible for naturalization.

o The waiver is not available to individuals who are subject to removal or are inadmissible based on a wide range of criminal and national security grounds, including convictions for aggravated felonies.

· Creates an exception to reinstatement of removal orders for individuals under 18 years of age or where reinstatement would be contrary to public interest or would result in hardship to the alien’s citizen or permanent resident parent, spouse, or child.

Limits the impact of the unlawful presence bars found at INA § 212(a)(9)(B) and (C):

o Expands eligibility for the waiver of the three– and ten-year bars to those who are parents of U.S. citizens or LPRs and strikes “extreme” from the waiver’s hardship standard;

o Adds that beneficiaries of approved H nonimmigrant visa petitions who earned a baccalaureate or higher degree from a U.S. institution and were under the age of 16 upon initial entry into the U.S. are eligible for a waiver of inadmissibility.

· Limits scope of inadmissibility for misrepresentation and false claims to U.S. citizenship.

o Adds a three-year limit on past misrepresentations.

o Requires that false claims to citizenship be “knowing” and exempts children under 18 and those without the mental capacity to knowingly make a false claim.

o Creates a new, non-reviewable waiver for misrepresentations and false claims that applies to noncitizens in or outside the United States; that is based upon extreme hardship to the noncitizen or a qualifying relative; that in VAWA cases is based upon significant hardship to the noncitizen or qualifying relative; and eliminates existing section 212(i) waiver.

o Applies the new inadmissibility provisions for false claims to citizenship to the deportability provisions.

Part Eight: Miscellaneous Provisions Regarding Family-Immigration

Expands eligibility for K-visas to fiancé(e)s and spouses of LPRs and protects against children of the beneficiary “aging out.”

· Permits LPRs to file fiancé(e), or immigrant visa petitions (as a K-1 or K-3).

· Provides that, for purposes of both the visa petition and the subsequent adjustment application, the age of the dependent child of the beneficiary is determined at the time the petition is filed.

· For K-1 visas, establishes a six-month window following the marriage within which the visa holder must apply for adjustment of status.

· Eligibility for a waiver of inadmissibility isnot a bar to an application for adjustment.

· Effective on the date of enactment.

·Permits stepchild to be sponsored if under the age of 21 years (changed from 18).

· Allows child to be adopted if under the age of 18 (changed from 16) and harmonizes adoptions between Hague and Non-Hague Convention countries.

· Allows an alien whose U.S. citizen (USC) or Lawful Permanent Resident (LPR) relative died prior to the date of the enactment of the Act to file an immigrant petition based on that relationship within two years of the enactment of this Act.

· Permits adjudication of an immigrant visa if the qualifying relative on a visa petition dies prior to the completion of the immigrant visa processing. Visa can be adjudicated as if the death had not occurred. Visa issued prior to qualifying relative’s death remains valid after such death. Applies to an immediate relative, a family-sponsored immigrant, a derivative beneficiary of an employment-based immigrant, or the spouse or child of a refugee or asylee.

· Where qualifying relative died prior to enactment of this Act, provision –

  • Allows for a renewal of an application via filing a Motion to Reopen without fee, if the case was denied or revoked due to death of the petitioner;
  • Allows for consideration of the visa petition if the beneficiary was excluded, deported, removed or departed voluntarily, notwithstanding section 212(a)(9).

· Allows spouses of deceased USCs to apply for naturalization after three years of LPR status.

· Grants that if an alien would have been eligible for a waiver of inadmissibility but for the death of the qualifying relative, the alien’s eligibility for the waiver is preserved and the death will be considered the functional equivalent of hardship.

· Removes the requirement under 204(l) that the alien had to live within the U.S. at the time of the death of the qualifying relative and had to continue to live in the U.S.

· Allows for adjudication of an affidavit of support to be adjudicated for § 204(l) surviving relatives.

· Removes the requirement that the immediate relative petition be filed within two years of the death of the qualifying relative.

· Exempts any alien who has obtained the status of a § 204(l) surviving relative from the public charge ground of inadmissibility.

Part Seven: the V- non-immigrant Visa

· Unmarried sons or daughters of USCs or LPRs and married sons or daughters of USCs under the age of 31, if the alien is the beneficiary of an approved petition:


o Eligible for V Visa.

o Eligible for work authorization.

o Termination of authorized admission 30 days after denial of the visa petition or adjustment of status application.

· Siblings of USCs and married sons or daughters of USCs over the age of 31:

o Eligible for V Visa.

o Ineligible for work authorization.

o Authorized admission may not exceed 60 days per fiscal year

o Ineligible to earn points for merit-based visa while in this status.


· Ineligible to receive public benefits.

· Effective on the first day of the first fiscal year after the date of enactment of the Act.

Part Six: Reclassification of Certain Relatives as “Immediate” Relatives

Immediate Relatives

· Reclassifies spouses and minor children of lawful permanent residents as immediate relatives. Extends to them the protections for immediate relatives in case of death of or abuse by a U.S. citizen or an LPR spouse or parent.

· Allows derivatives (spouse or child) for immediate relatives.

· Includes “child” to protections given to spouses in case of death of or abuse by USC spouse or parent.

· Continues to include the requirement that the immediate relative petition be filed within two years of the death of the qualifying relative; however, Section 2312 expressly removed the two-year requirement.

Visa Allocation

· Allocates worldwide level for family-sponsored immigrant visas.

o Unmarried sons and daughters of USCs: 20 percent of worldwide level

o Unmarried sons and daughters of LPRs: 20 percent of worldwide level + unused visas for unmarried sons and daughters of USCs

o Married sons and daughters of USCs: 20 percent of worldwide level + unused visas for unmarried sons and daughter of LPRs

o Siblings of USCs: 40 percent of worldwide level + unused visas for married sons and daughters of USCs

Termination/Reinstatement of Registration

· Includes circumstances when an individual’s registration for an immigrant visa shall be terminated:

o Failure to apply for adjustment of status within one year following notification of visa availability

o Failure to apply for an immigrant visa within one year following notification of visa availability

ALLOCATION OF IMMIGRATION VISAS.

· Allocates visas for unmarried sons or daughters of U.S. citizens to not exceed 35% of worldwide level (change from 23,400)

· Allocates visas for married sons or daughters of USCs under 31 years of age at the time of filing to not exceed 25% of the worldwide level. (CHANGES from all married sons or daughters, to only those under 31 years of age at time of filing, and changes number from 23,400)

· Allocates visas for unmarried sons and daughters of LPRs not to exceed 40% of the worldwide level (change from 114,200)

· Removes limit on spouses and children of LPRs. (Now considered immediate relatives.)

· Eliminates the visa category for brothers and sisters of USCs.

· Visa petitions which automatically convert:

o Unmarried son or daughter of a USC to a married son or daughter category upon marriage, irrespective of age of the alien.

o Married son or daughter of a USC to an unmarried son or daughter of a USC upon dissolution of a marriage or death of the alien’s spouse.

· Above-listed family-based visa provisions are effective as of the first day of the first fiscal year that begins at least 18 months after the enactment of this Act.

· Exempts certain aliens (derivative beneficiaries of employment-based immigrants; aliens with extraordinary ability in the sciences, arts, education, business, or athletics, outstanding professors and researchers; multinational executives and managers; doctorate degree holders; and physicians who have completed the foreign residency requirements or obtained a waiver of those requirements or an exemption was requested by an interested state or federal agency) from being subject to the worldwide levels or numerical limitations.

· Expands treatment of family members to also include derivative beneficiaries of aliens described above.

· Renames §203(b)(2) from “Aliens who are members of the professions holding advanced degrees or aliens of exceptional ability” to “Aliens who are members of the professions holding advanced degrees or advanced degrees in a STEM field.”

· Allocates visas for professionals holding advanced degrees to not exceed 40% of the worldwide level. (Increased from 28.6%.)

· Eliminates the requirement for those who received an advanced degree in a STEM field from being subject to the worldwide levels or numerical limitations if the immigrant earned a graduate degree at the level of master’s or higher in the STEM field from a U.S. institution of higher education, has an offer of employment from a U.S. employer in a related field, and earned the qualifying degree within five years immediately prior to filing the petition.

· Removes the requirement of being “sought by an employer in the U.S.” if the Secretary of Homeland Security deems it to be in the national interest.

· Allows the Secretary to grant a national interest waiver if physician will work in shortage area or area with veterans’ facilities, and a federal agency or a local, county, regional, or state department of public health determines that work will be in the public interest.

· Permanent resident status cannot be issued until the alien has worked for five years in the area described above, not including the time spent in J status.

o Time accrues when work commences, not when petition is filed or approved.

o Explains mechanics for how the five-year period is to be counted.

o Unnecessary to file an additional immigrant visa petition due to change of work location.

· Allows physician working in a shortage area or area with veterans’ facilities to file the petition with the Secretary of Homeland Security prior to the completion of the five-year employment requirement.

· Removes the requirement for a labor certification for STEM workers.

· Allocates visas for skilled workers, professionals and other workers to not exceed 40% of the worldwide level. (Increased from 28.6%.)

· Adds that medical doctors must possess a license to practice medicine in the U.S.

· Removes the limitation on “other workers.”

· Allocates visas for certain special immigrants to not exceed 10% of the worldwide level.

· Allocates that visas for employment creation (EB-5) are not exceed 10% of the worldwide level.

Part Five: Merit-Based Point System

TRACK ONE

Creates a merit-based visa and points system and establishes eligibility criteria for merit-based immigrants.

  • Replaces provision for the Diversity visa with Merit-based system.
  • Clarifies that individuals admitted on the basis of a merit-based immigrant visa will have lawful permanent resident (LPR) status.
  • Awards points to applicants for factors such as education, length of employment, type of employment, family members in the U.S., and length of residence in the U.S.
  • Establishes a fee of $500.
  • Establishes eligibility criteria:

o Individuals in Registered Provisional Immigrant Status (RPI) may begin accruing points no earlier than 10 years after enactment.
o Individuals with a pending or approved petition in another immigrant category are ineligible to apply for a merit-based immigrant visa.

· Provides initially 120,000 visas as the worldwide level of merit-based immigrants, with a cap of 250,000. Allows for recapture of unused visas. If the level is less than 75 percent of the number of applicants, the level will increase by five percent the next year. If equal to or more than 75 percent, the level will stay the same minus any amount added for the recapture of unused visas. No increase in level is allowed if unemployment is over 8.5 percent.

· Allocates the number of merit-based visas:

  • First four fiscal years after enactment: the level of merit-based immigrant visas are allocated for skilled workers, professionals, and other workers, who provide non-seasonal unskilled labor.
  • Beginning with fifth fiscal year: 50 percent to applicants with highest number of points under Tier 1; 50 percent to applicants with highest number of points under Tier 2
  • Recapture of unused visas: Two-thirds of any unused Tier 1 visas are reserved for Tier 1 in the following fiscal year; Two-thirds of any unused Tier 2 visas are reserved for Tier 2 in the following fiscal year. The remaining one-third of Tier 1 and Tier 2 visas are available for either Tier 1/Tier2, in the following fiscal year.

· Authorizes Secretary to submit a proposal to modify the allocation of points.
· Effective on first day of the first fiscal year beginning after the date of enactment.

TRACK TWO

Creates an immigrant visa system and establishes eligibility criteria for merit-based immigrants under Track Two.  Clarifies that individuals admitted on the basis of a merit-based immigrant visa will have lawful permanent resident (LPR) status.

Allows the following individuals to be eligible for merit-based immigrant visas beginning October 1, 2014:

  • Beneficiaries of family- and employment-based immigrant petitions pending for five years and filed prior to enactment
  • Beneficiaries of current F3/F4 petitions pending for five years and filed after enactment
  • Long-term workers, that were not admitted under the W visa and have been lawfully present in the U.S. for 10 years

Adds requirement that beginning in FY2029, in order to be eligible for adjustment of status, the alien must be lawfully present in an employment authorized status for 20 years prior to filing.

Visa Allocation

· Employment-based:

  • Allocates annually for the years FY2015–FY2021, the number of visas equal to 1/7 of the number of employment-based petitions filed prior to enactment and pending for five years

· Family-based:

  • Converts automatically spouses and children of LPRs to immediate relatives
  • Allocates annually for the years FY2015–FY2021, the number of visas equal to 1/7 of the number of family petitions pending for five years and filed prior to enactment minus the number of spouses and children of LPRs as of the date of enactment.
  • Directs the Secretary, in FY2022, to allocate the number of visas equal to • of the number of beneficiaries of current F3/F4 petitions whose visas had not been issued by October 1, 2021.
  • Directs the Secretary, in FY2023, to allocate the number of merit-based immigrant visas equal to the number of beneficiaries of current F3/F4 petitions whose visas had not been issued by October 1, 2022.
  • Directs that employment- and family-based visas shall be issued in the order they were filed.

REPEAL OF THE DIVERSITY VISA PROGRAM.

· Eliminates the diversity visa program with an effective date of October 1, 2014.

· Allows individuals who receive notification of selection for a diversity immigrant visa for FY2013 or FY2014 to remain eligible.

Part Four: Non-Immigrant Agricultural Worker (“W-visa”)

Amends INA §101(a)(15) to create new temporary visas for aliens coming to the U.S. to perform full-time agricultural work under a written contract (W-2) or for “at-will” agricultural workers who have an offer of full-time employment (W-3) in an agricultural occupation with a “designated agricultural employer” (DAE). Establishes an effective date of October 1, 2014.

Provides that an employer may not employ an agricultural worker under the program unless they are a DAE. Agricultural workers may not be employed under the program unless they are a non-immigrant agricultural worker.

Establishes numerical limitations as follows:

  • 112,333 for the first five fiscal years, to be adjusted based on the evaluation of a number of demand, usage, and economic factors.
  • Visas to be allocated evenly between the four quarters unless the Secretary determines otherwise.
  • Unused visas carry over to the next quarter of the same fiscal year.
  • W-2/W-3 shall not be recounted if petitioned for by a subsequent DAE.
  • Directs the Secretary to establish emergency procedures for immediately adjusting the cap to account for severe labor shortage.
  • For the sixth and subsequent years, worldwide levels will be set after considering a number of demand, usage, and economic factors.

General Provisions

  • Provides for a three-year period of admission, renewable for three more years. No additional renewals until the alien returns to residence outside the U.S. for at least three months.
  • Requires W-2 contract worker to depart once contract is complete, assuming no new employment with a DAE, and W-3 “at-will” worker to depart if not continuously employed with a DAE. Allows a 60-day exemption. Provides for waiver of periods of unemployment of more than 60 days if unemployment was due to injury or natural disaster. 60-day exemption is tolled for up to 60 days per fiscal year if the worker leaves the U.S.
  • Portability for Contract Workers: Allows W-2 contract workers to accept employment with other DAEs after completion of the original contract. A W-2 who voluntarily abandons the contract period or whose employment is terminated for cause may not accept new employment with another DAE without first departing the U.S. and re-entering under new offer and is not entitled to the 75 percent payment guarantee in (e)(4)(B). Termination of a W-2 contract by mutual agreement is not voluntary abandonment.
  • Portability for “At-Will” Workers: W-3 “at-will” workers may seek employment with other DAEs.
  • Requires employers to register for DAE status and sets forth criteria. Employers granted DAE status will be provided a registration number and status will be valid for three years. Provides for the collection of a registration fee in an amount to be determined.
  • Requires the DAE to submit a petition to DHS not later than 45 days before the date of need. Sets forth the required attestations and documentation. Allows W-2 or W-3 workers who are in the U.S. in lawful status to commence employment with the DAE upon submission of the petition to DHS.
  • Requires employers to submit a job posting to the state workforce agency no later than 60 days before the date of need and authorize the posting on America’s Job Bank or other electronic job registry for 45 days. No interstate job order is required. Employer must keep a record of eligible, able, willing, and qualified U.S. workers who apply for the job.
  • Prohibits employers from pursuing a W-2 or W-3 unless the employer offers such employment to equally or better qualified U.S. workers or blue card holders who will be available at the time and place of need and who apply for such employment. An employer may hire an H-2A worker if the H-2A worker worked for the employer for three years during the four-year period ending on the date when the H-2A program is terminated, and the employer pays the worker the adverse effect wage rate.
  • Prohibits employers from displacing U.S. workers except for good cause during the period of employment and for 30 days preceding. W-2 or W-3 workers cannot be used to replace workers during a strike or lockout.
  • Requires employers to guarantee contract workers (W-2) the hourly equivalent of at least 75 percent of the work days of the total period of employment. If the employer affords the W-2 worker less than this, it must pay the worker the amount they would have otherwise earned. Allows employers to consider hours in which the employee failed to work when calculating whether the guaranteed employment period has been met.
  • Requires employers to provide comparable insurance for injury and disease at no cost to the employee if the job is not covered by state worker’s compensation laws.
  • Prohibits employers from employing a W-2 or W-3 worker for work other than agricultural employment.
  • Requires the employer to offer housing that meets federal standards for temporary labor camps or local or state standards for rental or public accommodation housing or substantially similar habitation. Employer may not collect deposits for bedding or other incidentals. Employee may be required to reimburse the employer for reasonable costs to repair damage not resulting from normal wear and tear.
  • Requires the employer to assign the employee to one of six Bureau of Labor Statistics job categories: (1) First Line Supervisors of Farming, Fishing, and Forestry Workers; (2) Animal Breeders; (3) Graders and Sorters, Agricultural Products; (4) Agricultural Equipment Operators; (5) Farmworkers and Laborers, Crop, Nursery, and Greenhouse; or (6) Farmworkers, Farm, Ranch and Aquacultural Animals.
  • Requires employers to offer the same benefits, wages, and working conditions to similarly situated U.S. workers. Employers need not provide housing to U.S. workers unless they were recruited and hired in connection with an application for a W-2 or W-3 worker and live 100 miles or more from the place of employment. Employers must attest as to whether they are a program dependent employer, which is defined as an employer with at least 60 percent of its employees who are not U.S. workers based on the preceding calendar year, payroll records, and E-Verify records.
  • Provides that if the services of a W-2 contract worker are no longer required before expiration of the contract for reasons beyond the control of the employer, such as a natural disaster or regulatory drought, the employer:

    • May terminate employment;
    • Must fulfill the 75 percent guarantee from the first work day to termination;
    • Must make efforts to transfer the worker to other comparable employment; and
    • If no transfer, provide return transportation costs to home country.

Part Three: Agricultural Worker Program (“Blue Card”)

Provides that the Secretary can grant “blue card” (BC) status to any non-citizen who:

  • Undergoes background checks;
  • Performed at least 575 hours or 100 work days during the two-year period ending on December 31, 2012, or is a qualifying noncitizen’s spouse or child;
  • Submits a completed application during the application period;
  • Is not ineligible under INA §245B(b)(3) or (4) (same grounds as RPI-status)
  • Sets forth an application period of one year, beginning on the date the final rule is published in the Federal Register, with the possibility of an 18-month extension.
  • Provides for a $100 penalty fee for applicants 21 and older. Secretary to determine fees.
  • If denied, allows the applicant to file an amended application within the application period with evidence or fees missing in the first application.
  • Provides protections for prima facie eligible individuals who are in removal proceedings or are apprehended between the date of enactment and the end of the application period. Such individuals shall be given reasonable opportunity to apply and shall not be removed.
  • Individuals with final orders of removal or voluntary departure orders may apply for BC status and, if granted, shall file a motion to reopen, which shall be granted unless evidence indicates they are not eligible.

While the Blue Card application is pending, applicants:

  • May travel on advance parole under urgent humanitarian circumstances;
  • May not be detained or removed unless it is determined that the alien is or has become ineligible for BC status;
  • Do not accrue unlawful presence for purposes of 3/10 year bars; and
  • Are not considered unauthorized for employment.
  • Protects employers from an unlawful employment violation under §274A(a)(2) if the employer knows the individual is an applicant for BC status or will apply once the application period starts.
  • Individuals with final orders who depart under advance parole or BC status do not effectuate removal under INA §101(g).
  • No individual may remain in BC status eight years after the date regulations are published.

Individuals granted Blue Card status:

  • Will receive evidence of BC status that is machine-readable, tamper-resistant, and includes a digitized photo that will serve as a valid travel document and evidence of employment authorization;
  • Will be authorized for employment;
  • May travel and be readmitted to the U.S. without a visa, but may not remain outside the U.S. for more than 180 days unless extenuating circumstances prevent timely return. The BC holder is also subject to certain inadmissibility grounds;
  • Are lawfully admitted to the U.S. as of the date the application is filed;
  • Are considered lawfully present, EXCEPT for purposes of certain tax credits and the Affordable Healthcare Act; and
  • Are NOT eligible for means-tested public benefits.

Employer must provide annual record of employment to BC holders and the Secretary of Agriculture. There are fines for noncompliance.

Adjustment of Status

Provides for adjustment of status to LPR for individuals granted BC status five years after the date of enactment if:

  • (1) they performed 100 work days of agricultural employment during each of five years during the eight-year period beginning on the date of enactment, OR
  • (2) they performed 150 work days of agricultural employment during each of three years during the five-year period beginning on the date of enactment.
  • Secretary may credit up to 12 additional months of agricultural employment to meet the requirements if they were unable to work due to pregnancy, injury or disease of self or child; severe weather conditions; or termination from employment if termination was without just cause;
  • If alien is unable to fulfill the agricultural service requirement, may adjust status to RPI.

Individuals applying for adjustment to LPR status from BC status:

  • Must apply before BC status expires;
  • Must pay a $400 fine;
  • May be denied LPR status if no longer eligible for BC status or if failed to perform qualifying employment;
  • May not adjust if BC revocation proceedings are pending;
  • May not file until federal tax liabilities are satisfied; and
  • Can include spouses and children on their principal application.
  • Grounds of inadmissibility that were previously waived or made inapplicable shall not apply for purposes of adjustment to LPR status.
  • Secretary to determine fees and may interview applicants.
  • Includes confidentiality provisions for information provided on applications and for employment records maintained for purposes of this section.

Part Two: DREAM Act

“Development, Relief, and Education for Alien Minors Act of 2013.” allows for Adjustment of Status for Certain Aliens who entered the U.S. as children.  Applicant must demonstrate that he or she:

  • Has been an RPI for at least five years;
  • Entered initially the U.S. before the age of 16;
  • Has earned a H.S. diploma or GED in the U.S.;
  • Obtained a degree from an institution of higher education or completed at least two years of a bachelor’s program, or served at least four years in Uniformed Services and, if discharged, received an honorable discharge (may be waived for compelling circumstances); and
  • Has provided a list of each secondary school that the applicant attended in the U.S.;
  • Has passed an English/civics test, unless the applicant has a physical or developmental disability or mental impairment; and
  • Has submitted new biometric and biographic data and passed background checks.

Certain Applicants will receive streamlined or enhanced processing:

  • Streamlined adjustment of status procedures for DACA recipients.
  • Allows DREAM Act LPRs to apply for U.S. citizenship immediately upon becoming green card holders.
  • Provides individuals who adjust status under these provisions are not subject to the numerical limitations on visas.
  • Allowed to be charged “in-state” tuition rates at publicly funded institutions of higher learning.