Wednesday, April 24, 2013

The Gang of Eight’s Immigration Bill and What it May Mean for Employers

Last week, the bi-partisan Gang of Eight U.S. Senators released an 844 page bill entitled “The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.” If you are like me and do not have 10+ hours to devote to reading the entire bill, the Senate has also released a 17 page summary that can be found here  

The bill addresses many aspects of the U.S. immigration system, but in the interest of brevity, I will limit my comments to a few key parts of the bill that directly impact employers. 
 
Mandatory E-Verify for All Employers
Under the proposed legislation, all employers would be required to participate in E-Verify within five years according to the following timetable: employers with 5,000 or more employees would need to enroll within 2 years; employers with 500 or more employees would need to enroll within 3 years; and all other employers, including agricultural employers, would need to enroll within 4 years. These timelines would not be triggered, however, until DHS publishes regulations, which may not happen for several months after the law has been enacted.

The bill also proposes changes to the E-Verify program, including adding an administrative appeal process for individuals who wish to contest a non-confirmation determination. There would also be a stronger penalty for employers who do not comply with the E-Verify requirement. Specifically, if an employer fails to verify an employee using E-Verify and it is later discovered that the individual is undocumented, the bill provides that the employer is presumed to have knowingly hired an undocumented worker. Such a violation carries with it a civil penalty range of $3,500 to $7,500 per violation for the first offense. Although not directly related to the mandatory E-Verify requirement, the bill would also require that the Department of Homeland Security develop a plan to allow individuals to “lock” their Social Security Numbers so as to avoid identity theft.   
More Employment Opportunities for Foreign Workers

The proposed legislation would increase the annual number of new H-1B visas available from 65,000 to 110,000, with the potential for additional increases up to 180,000 visas if certain conditions are met. The bill would also increase the number of visas available to foreign nationals holding advanced degrees from 20,000 visas to 25,000, but this “Master’s Cap” would only apply to graduates in STEM fields (Science, Technology, Engineering, and Mathematics).  The bill also proposes significant changes to the H-1B application process, including a requirement that employers conduct recruitment prior to filing a Labor Condition Application, a non-displacement attestation, and a different method for determining the prevailing wage. The bill would also allow certain H-4 dependents to apply for employment authorization and would allow H-1B workers a 60-day grace period to extend, change or adjust status after termination.
In addition, the bill proposes new categories of visas: a W-1 visa for lesser-skilled non-agricultural workers, a W-2 visa for temporary agricultural workers who perform work under a written contract, and a W-3 visa for "at-will" workers who receive a full-time employment offer in an agricultural field. These new categories would replace the current H-2A agricultural worker program.

The bill proposes several significant changes to U.S. immigration law, both good and potentially bad for employers. Keep in mind, however, that it is just a bill at this point. There will likely be changes to the proposed legislation before it becomes law, if that even happens. Stay tuned for further updates.

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