
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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