A major piece of comprehensive immigration was approved by the Senate. Among other things, this law would provide a much-needed method for persons in this country without status to obtain legal status again. This bill contains the following positive elements:

• Increased H-1B visa numbers for employers;
• increased immigrant employment-based visas to help alleviate the immense backlog that exists;
• a reasonable guest worker provision for companies that have hard to fill non-professional positions;
• and a provision for the talented immigrants to obtain legal status and attain a well deserved place in today's labor market.  

The latest version of the Senate’s bill, as of press time contained a tiered system that follows McCain-Kennedy’s original proposal of an earned path to legalization for those who have been in the US the longest.

Those in the US for over five years would be given guest worker status and be put at the back of the line for the path to residency and citizenship. It is believed this path would be open approximately five million people and could take eleven years.

Those in the US between two and five years would have to go one of 16 ports of entry (probably at the border) determined by the US Visit program (now at the airports and land borders) and would be given a temporary visa which be given temporary visa which would allow them to immediately return to the United States. Once back in the United States they could apply for residence and citizenship the same as the first group. It is anticipated that three to four million people would be eligible and they would end up waiting a few years longer than the ones who have been here five years.

Those who entered after January 7, 2004 – the date President Bush first mentioned guest workers in a speech – would be required to leave the US immediately, however, they may not be subject to the three and ten years bars which means they should be eligible for the temporary guest worker provisions.

As many know, the House immigration bill, HR 4437, also known as Sensenberenner-King bill, was passed by the House last December just before Christmas. It has no guest worker provisions, no earned path to legalization, and it will criminalize those who overstay or enter the US illegally as well as nearly everyone who “aids” someone who is undocumented.

The two bills must now be reconciled by a Senate-House Conference Committee that will soon be formed and convened to determine the final terms of the Immigration Reform law.

Then the final bill will go to President Bush for approval. The President has publicly stated his support for the Senate version providing a path to permanent residence for those here out of status presently.

By Christopher A. Kerosky, Esq.

The Immigration Reform bill that has been approved by the most important committee of the Senate could offer hope to many foreign-born nationals in the U.S. either out of status or with little or no way to stay in status when their visa expires.

The Senate bill provides for persons presently out of status in the U.S. who meet certain conditions to obtain legal status. This is the first time in over 5 years that such a possibility has existed for most of foreign-born nationals of this country.

The bill also creates a temporary worker visa (H-2C visa) for persons to come to work in the U.S. as so-called “guest workers” for up to six years.

The proposed law was approved by the Judiciary Committee last week by a vote of 12 to 6, and was sent to the full Senate for debate. The Senate is now debating the law and, if approved, must be later approved by the House. The House of Representatives passed its own immigration bill several weeks ago which contained no such legalization provisions.

Below is a summary of the most important provisions of the Immigration bill that would provide visas or permanent residence to various foreign nationals here. Please Note that I did not summarize the many enforcement provisions of the proposed law – this will be done in a future article if the bill becomes law.

Legalization Provisions (allowing persons out of status to obtain legal status).

• Section 601 of the bill provides for persons presently out of status in the U.S. who meet certain conditions to obtain legal status in the United States.

• To obtain legal status, a nonimmigrant worker status must prove that he or she: (1) was physically present and employed in the U.S. before January 7, 2004; and (2) has been employed in the U.S. since that date, whether full time, part time, seasonally, or self-employed.

• The immigrant worker’s spouse and children are also eligible to apply for adjustment of status or to follow to join the immigrant from a foreign country.

• An immigrant worker may prove such employment by submission of government employment records or, if unable to do so, they may prove a history of employment by submitting at least two of the following types of documents that provide evidence of employment: bank records; business records; sworn affidavits from non-relatives who have direct knowledge of the alien’s employment; or remittance records.

• The employment requirements under this section will not apply to minors under 21 years of age.

• In addition, a foreign national may satisfy the employment requirements, in whole or in part, by full-time attendance at either an institution of higher education or a secondary school.

• An applicant for this status must pay an initial fine of $1000 in addition to an application fee, submit fingerprints and other data, and undergo criminal and security background checks.

• An applicant is not eligible for this conditional nonimmigrant status for grounds related to criminal conduct, security reasons, terrorist activity, or participating in the persecution of any person.

• However, other “grounds of inadmissibility” that normally would apply related to the applicant’s undocumented status will be waived.

• The period of authorized stay for a conditional nonimmigrant is 6 years, during which time the person may not change from this classification to any other nonimmigrant or immigrant classification.

• A person who files an application for conditional nonimmigrant status (as well as the person’s spouse or child) will be granted employment authorization, permission to travel abroad, and may not be detained, determined inadmissible or deportable, or removed pending final adjudication of the alien’s application, unless the person becomes ineligible for such status based upon conduct or criminal conviction.

• Persons present in the U.S. who have been ordered excluded, deported, removed, or ordered to depart voluntarily may, notwithstanding such order, apply for adjustment to conditional nonimmigrant status.

Adjustment of Status for undocumented persons.

• Section 602 of the bill provides for adjustment of status to permanent residence for conditional nonimmigrants meeting certain conditions.

• A conditional nonimmigrant qualifies for the adjustment to lawful permanent resident status if he or she satisfies the following requirements: (1) completes the employment requirement; (2) pays an additional $1000 fine as well as the application fee; (3) is admissible under the immigration laws; (4) undergoes a medical examination; (5) shows proof of payment of taxes; (6) demonstrates the requisite knowledge of English and U.S. civics; (7) successfully undergoes criminal and security background checks; and (8) registers for military selective service, if applicable.

• The children and spouse of such an alien may also apply for adjustment.

• The proposed law exempts from the direct numerical limitations aliens whose status is adjusted from conditional nonimmigrant status to lawful permanent resident status.

• Section 604 of the law provides that employers of aliens who apply for conditional status or adjustment of status shall not be subject to civil or criminal tax liability relating to the employment of the alien prior to his or her receiving employment authorization.

• Persons may not apply for permanent residence until all those within the same class of persons who have previously applied for permanent residence but are waiting as part of the backlog, will have become eligible.

Nonimmigrant Temporary Worker Program .

• Section 402 of the bill creates a new “essential worker category” (“H-2C visa ”) for persons coming temporarily to the U.S. to initially perform labor or services.

• Spouses and children would be eligible to accompany or follow to join the principal worker.

• The worker must give proof to the Consulate of a job offer from an employer in U.S., adhering to certain requirements.

• The nonimmigrant worker is required to pass a criminal and security background check, pay a $500 application fee, and undergo a medical examination.

• An H-2C visa holder may not change their visa status is to be admitted for a period of 3 years, with one 3-year extension allowed.

• An H-2C visa holder is to be admitted for a period of 3 years, with one 3-year extension allowed.

• The visa terminates if the worker is unemployed for 60 or more consecutive days, at which point alien is required to leave U.S. Failure to depart within 10 days after H-2C authorization is over is barred from receiving any immigration benefits in the future

• An H-2C visa holder whose period of authorization is still valid may travel outside the US and re-enter without obtaining a new visa.

• A worker cannot exceed 6 years on an H-2C visa, unless the worker has been physically present outside US for at least 1 year after expiration of H-2C status.

• An employer who hires H-2C nonimmigrant to attest to the fact that such a hire did not and will not adversely affect the wages, working conditions, and employment status of US workers employed by the employer within the 180-day period beginning 90 days before the date on which petition is filed.

• The US employer must also prove that good faith efforts in compliance with Department of Labor regulations have been made to ensure that there are not sufficient US workers willing or available to fill the position.

• The US employer must prove that H-2C worker is being sought for a bona fide job for which employer needs the labor or services, has been and is clearly open to any US worker, and for which employer will be able to place H-2C worker on the payroll.

• The employer to provide the same wages, benefits, and working conditions to H-2C workers as are provided to similarly employed U.S. workers, including providing the same level of health insurance coverage available to US workers, at no cost to the H-2C worker.

• The number of visas under this program is limited to 400,000 for the first fiscal year under the H-2C program. The bill provides for incremental increases if the total number of visas allotted is reached at certain points before the end of the fiscal year

Ability to Adjust Status to Permanent Residence for H-2C visa holders.

• Section 408 of the bill provides for adjustment of status to legal permanent residence aliens having H-2C visa status, either through employer-based petitions or, if the alien has maintained H-2C status in the U.S. for a cumulative total of four years, through self-petition.

• Applicants for adjustment under this section must be physically present in the U.S.

• Applicants must also establish that they meet the same English language and civics requirements for naturalization applicants.

• Applicants will not be deemed ineligible for H-2C nonimmigrant status solely by virtue of the fact that they have filed for adjustment of status or have otherwise sought permanent residence in the U.S.

• The legal stay of an H-2C nonimmigrant beyond the period of authorized stay if a labor certification or immigrant visa petition filed on behalf of the applicant is pending. In such cases, the worker’s stay shall be extended in one-year increments until a final decision is made on his or her lawful permanent residence.

Decrease in Visa Backlogs.

• Section 501 of the bill increase the number of family-based immigrant visas available thus reducing the backlog for persons waiting for a green card through sponsorship by a family member.

• The bill would do so by removing immediate relatives (spouses, children, and parents) of U.S. citizens from the annual worldwide ceiling of 480,000 family-based visas and redistribute them elsewhere in the family-based preference system.

• The bill also would also reduce the backlog for persons waiting for a green card through sponsorship by an employer. It would do so by increasing the ceiling on employment-based visas from 140,000 to 290,000.

• The bill would exempt spouses and children of employment-based immigrants from the limits.

• Section 502 of the bill would also increase per-country ceilings for both employment-based and family-based immigrant visas.

H-1B Visas.

• The proposed law dramatically increases the numbers of H-1B visas available (to 115,000 from 65,000 in the first fiscal year following enactment);

• The law also adds a market-based escalator mechanism so that the number available annually will fluctuate in response to the demand for such visas in the preceding fiscal year;

• The proposed law would also exempt from the numerical limit on H-1B visas certain advanced-degree holders.

Agricultural Worker Program.

• Section 613 of the proposed law would set up a “Blue Card Program” for immigrant workers to obtain legal status

• Applicants would qualify if they worked in U.S. agriculture for at least 150 days or 863 hours, whichever is less, during the 24-month period ending December 31, 2005;

• No more than 1.5 million blue cards could be issued during the 5-year period beginning on the date of enactment of the Act.

• After obtaining “blue card” status, participants would have to do the following to earn a green card: perform agricultural work for a minimum number of days in the next 5-year period beginning on the date of enactment of the Act.

Other Provisions.

• Section 507 of the bill would authorize 24 months of optional practical training for F-1 students

• The bill would also create a new F-4 visa for individuals pursuing an advanced degree in a math, engineering, technology, or a physical sciences program.

• All F4 students, after completing the advanced degree program, obtain full-time employment related to the field of study, to adjust their status to permanent resident upon payment of a $2,000 fee.

• Section 508 of the bill would exempt individuals with advanced degrees from the numerical limitations on employment-based immigration: (1) aliens with advanced degrees in science, technology, engineering, or math who have been working in a related field in the United States on a nonimmigrant visa during the three year period immediately preceding their application for an immigrant visa; and (2) aliens with extraordinary ability, outstanding professors and researchers, and aliens who have received a national interest waiver.