What the Election Results Mean for Immigrants.

by Christopher A. Kerosky, Esq.

The decisive victory of Barack Obama in November’s election, coupled with gains by the Democrats in the U.S. Senate and the House of Representatives, could be good news for immigrants. However, it’s likely they will have to wait at least 1-2 years for immigration reform, as it appears low on the agenda of priorities for an Obama administration.

Obama clearly voiced his support for immigration reform in his Presidential campaign. His transition website (www.change.gov) states that it is the policy of the Obama Administration to “support a system that allows undocumented immigrants who are in good standing to pay a fine, learn English, and go to the back of the line for the opportunity to become citizens.” However, it is notable that this goal is listed behind other immigration policy goals such as “creating secure borders” and “removing incentives to enter illegally”. His recent choice for Director of Homeland Security, Janet Napolitano, was tough on border security while serving as Governor of Arizona. (During a subsequent issue I will discuss what the selection of Ms. Napolitano means for immigration policy.)

If and when Obama chooses to make immigration reform a priority, he will likely have more support for it in Congress. The Democratic Party gained at least 7 seats in the Senate and will hold at least a 58-40 advantage there. In the House, the Democrats also had substantial gains and have a 255-175 advantage. In 2007, the McCain-Kennedy immigration reform bill never reached a vote in the Senate because it lacked the necessary 60 votes to cut-off debate or prevent a promised filibuster by the Republicans. Generally, Democrats tended to support immigration reform while Republicans opposed it – although there were many exceptions in both parties. After January, when the newly-elected Congress is sworn in, there may be enough votes to pass immigration reform, depending upon the timing and substance of such a bill and to what extent the public supports or opposes it.

The big impediment for undocumented immigrants now is that the Obama Administration will have many other priorities in the coming year, including an economic stimulus package, health care reform, the energy crisis, tax legislation and ending the war in Iraq. In an interview on CNN recently, Barack Obama listed immigration as a priority item below these other five. Obama did discuss immigration reform in his post-election meeting with his opponent Senator John McCain and it could be that this becomes their own, special planned bipartisan legislative project in the coming 2-3 years.

The fact is that in these difficult economic times, an immigration reform bill is likely to be politically unpopular. I believe it will be left off of the legislative agenda in 2009 and considered in 2010 at the earliest.

Federal Court Judge In San Francisco Stops The Government From Enforcing Its New Rule Against Illegal Employment.

by Christopher A. Kerosky, Esq.

In October of this year, a District Court judge in San Francisco issued an injunction stopping the government from applying a rule that would have made it much more difficult for undocumented aliens to work here. The efforts of the federal government to stop employers from hiring workers without the permission to work were dealt a temporary set-back when a court prohibited the government from enforcing its so-called “no-match letters”.

On August 15, 2007, the Department of Homeland Security (DHS) issued a new rule that created an enforcement procedure for ensuring that workers have a legal right to work. It called for the DHS and Social Security Administration (SSA) to share their database of information about employees and immigrants in this country. It would have subjected employers to fines and even jail if they failed to respond to government inquiries about the legal status of a worker.

The SSA has for many years issued letters informing employers when the social security numbers reported for their employees do not match the records of the government agency. These “no-match” letters have up until now been largely ignored. No effort was made to follow up these letters with enforcement of the law, until this recent regulation.

Under the new DHS rules, if an employer gets a no-match letter, it must take action within 90 days to resolve the issue with the SSA. If the employee cannot prove to the employer that his social security number is valid within that period, then the employer is supposed to fire the employee or face significant fines. In some cases, the employee would have to be terminated even if the employee’s social security number is valid and the SSA’s information is in error.

The new law was challenged in court by a coalition of business and labor groups in the case of American Federation of Labor v. Chertoff, filed in U.S. District Court in San Francisco. The plaintiffs argued that the law was arbitrary and capricious, and could result in the termination of employment of U.S. citizens due to the inadequate safeguards provided by the compliance system. The government defended the law as necessary for national security and enforcement of the immigration laws.

District Court Judge Charles Breyer in San Francisco agreed with the plaintiffs, finding the law does risk violating the rights of citizens and others with a valid right of employment. Until such time as the case moves forward to a conclusion, the judge has barred enforcement of the law by the DHS. This has provided at least a delay in implementation of this rule against employers.

Nonetheless, employers are still liable for hiring undocumented workers under the terms of other laws, including the 1996 Immigration Control and Reform Act. This subjects employers to both criminal and civil liability for knowingly hiring illegal workers. A number of large companies have been the target of recent raids by the DHS, resulting in mass arrests of illegal aliens and prosecutions of some employers.

Most likely, this court ruling is just a temporary delay in the government’s campaign to attack illegal immigration. There is a very vocal segment of our population that feels strongly about enforcement of the immigration laws and has put pressure on Congress and the administration to take action. Under the present political climate, immigrants and their employers can only expect continuously increasing government regulation and scrutiny of employment of non-citizens in this country, while the prospect of immigration reform seems ever more unlikely in the next several years.

Dream Act Defeated In Senate

by Christopher A. Kerosky, Esq.

The efforts to bring about rational immigration policy were dealt another blow recently when the United States Senate failed to pass a bill that would have offered a path to permanent residence for certain student immigrants. The proposed law -- the Development, Relief and Education Act for Minors Act of 2007 (“DREAM Act”) -- did not get the required 60 votes to close debate in the Senate and bring about a vote on the legislation.

Terms of the Legislation.
The bill would have amended the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 to authorize the adjustment to permanent resident status of certain alien students who are long-term United States residents and who entered the United States as children.

The law would have applied only to immigrants who came to the United States prior to their 16th birthday and had not yet turned 30 years old. Applicants would also be required to be of good moral character.

Those eligible under the proposed law would obtain a temporary conditional residence for up to six years. During that time, applicants would receive work permission and protection from deportation. Those immigrants who finished at least two years of college or two years of the military within that six year time period would qualify for permanent residence.

The bill would offer no legalization or other legal status to the parents or other relatives of those qualifying under the Act.

Vote in the Senate.
The bill had a large contingent of bi-partisan sponsors who highlighted the model lives of certain students here illegally that would have benefited from the Act. However, the law was opposed by blocs of conservatives as “another amnesty”. Radio talk show hosts and anti-immigrant groups attacked the bill as “encouraging illegal immigration”, despite the very narrow scope of the legislation.

The law was supported by only 52 Senators, eight less than required to close the debate and approve the legislation. Most of the legislation’s opponents were Republicans, but several Southern and Western Democrats also voted against the bill.

This was almost exactly the same coalition of anti-immigrant conservatives that defeated the immigration reform legislation this summer.

Prospects for Future Legislation.
The defeat of this legislation means there is even less hope for reasonable immigration reform in the next several years. Despite the fact that the next election is over 12 months away, many border state Democrats refused to support their party leadership and voted against the bill, apparently fearful of a backlash from anti-immigrant constituents. These same Senators – including Democratic Senators from Missouri, Lousiana, West Virgina and Arkansas – also voted against the comprehensive immigration reform that was defeated in July. It appears that these politicians are heeding the small but vocal opposition to immigration reform, rather than the majority of the American people who have repeatedly indicated their support for such legislation.

For now, it appears unlikely that supporters of immigration reform can expect to overcome these strident anti-immigrant forces in the political arena. Only through better political organization and activism can the immigrant community expect to obtain victory in the highly-partisan atmosphere that is American politics today.

Immigration Reform Law Breakthrough.

by Christopher A. Kerosky, Esq.

A bi-partisan group of Senators and two Cabinet secretaries from the Bush Administration announced the terms of a proposed law would largely restructure the shape of immigration law, creating a point system for eligibility for green cards, and reducing the role of family sponsorship.

The law would also provide a method for persons in this country without status to obtain legal status again and ultimately a green card.

Because the proposal has bi-partisan support and the endorsement of the Bush Administration, it is expected to have a good chance at approval by the Congress. The expectation is that a final version of the law will be approved by the end of August.

Legalization Provisions of the Proposed Law
The proposed legalization provisions in the law would apply to all those who were illegally in the U.S. before January, 2007. These persons would be able to apply a special 4-year Z visa: the principal or employed applicant would receive a Z-1 visa; the spouse or elderly parent of that applicant, a Z-2 visa and any minor children of that applicant would receive a Z- 3 visa.

Once applicants submit a completed application, they would receive probationary benefits which give them temporary legal status here. After further background checks are completed and certain benchmarks are met in border enforcement, the applicant would be eligible to receive the four-year visa. The visa could later be renewed for another 4-year term.

To apply, a person seeking Z status must be currently employed and pay various fees and penalties. The bill provides for a one-year long application period.

These presently undocumented immigrants would have a chance to apply for permanent residence, but only after paying a larger fine, proving their English skills and paying back taxes. Applications for permanent residence would have to be filed by the head of household in their country of origin.

These Z visa holders would be put at the back of the line for the path to residency and citizenship. It is believed it would be at least eight years before they were eligible for a green card and 13 years before they would be eligible for U.S. citizenship. However, there is a shorter waiting period for youth: individuals under the age of 30 that were brought to the United States as minors are eligible to receive their green card after 3 years rather than 8.

Other Terms of the Proposed Law

This bill contains the following terms:

• a guest worker program providing for up to 400,000 visas per year for nonprofessional positions such as restaurant workers, factory labor, and construction
• an increase in H-1B visas from 65,000 to 110,000 for higher-skilled positions
• a one-time increase in family-based and employment-based permanent residence visas to help alleviate the immense backlog that exists
• restructuring of the current employment based green card system by introduction of a merit based points system, and increased emphasis on skills-based immigration rather than family unity
• creation of a verification system for employers to check on the legal status of workers they hire, along with a requirement that employers verify the legal status of all of their employees
• enhanced border controls, construction of a border wall with Mexico, and higher penalties for the employment of undocumented immigrants

Restructuring the Permanent Residence System.
One of the most controversial parts of the bill would replace the current employment based green card system with a merit based points system, and put increased emphasis on skills-based immigration rather than family unity.

The current family-based immigrant categories would be drastically changed and some categories eliminated altogether. The following family-based preference categories would be eliminated:

• First Category: Unmarried Sons and Daughters of Citizens
• Second Category: Unmarried adult Sons and Daughters of Permanent Residents
• Third Category: Married Sons and Daughters of Citizens
• Fourth Category: Brothers and Sisters of Adult Citizens

There would also be reductions in the categories for parents of U.S. citizens and in the second preference category for spouses and minor children of permanent residents. This means that for the first time in many decades, U.S. citizens could not sponsor their adult children or siblings for a green card. There would also be a cut-back in the number of citizens who could sponsor their parents.

Instead, a yet undefined “point system” would be established to determine eligibility for a large segment of the immigrant pool. This point system would be similar to the immigration systems that exist in Great Britain, Canada and Australia, among others. Applicants would be graded on their eligibility for permanent residence based upon their education, experience and job potential, as well as family ties. The method of weighing each of these criteria is yet unclear, but would have a great role in allocating available green cards among applicant groups.

This is likely to be one of the most hotly-contested provisions of the proposed law.

Guest Worker Provisions in the Proposed Law. The guest worker portion of the law would establish a new temporary Y visa for workers who are coming to the U.S. to perform temporary jobs. The categories created by the law include:

• a non-seasonal Y temporary worker (Y-1 visa)
• a seasonal temporary worker (Y-1 visa)
• a visa for agricultural workers, animal herders, and dairy workers (Y-2A)
• a visa for non-agricultural workers (Y-2B)
• their spouses and minor children (Y-3 visa)

Dependents of Y visa holders can accompany Y workers if the worker can show proof of valid medical insurance and demonstrate that the wages of the principal Y visa holder are 150% above poverty level for the household size.

A Y-1 worker can be admitted for a two year period that can be renewed twice. However, the worker must spend a period of one year outside the United States after each two years in the U.S. Y-2A and Y-2B visas would be valid for 10 months with no extensions possible. A Y worker who fails to timely depart the U.S. at the expiration of their visa is permanently barred from any future immigration benefit.

Workers applying for a Y visa must be paid the market or "prevailing wage" of all similar workers in the area.

The Y-1 visas would be limited to 400,000 with yearly adjustments based on market fluctuations and need. The Y-2B visas would be limited to 100,000 with the potential for adjustments, but there would be no numerical limitations for Y-2A visas.

Border Security Measures in the Proposed Law.
As have many prior immigration proposals, the bill contains a number of border security measures. However, this bill stipulates that the legalization terms of the law do not take effect unless or until these “triggers” are in place. They include the hiring of 18,000 Border Patrol agents; the construction of 200 miles of vehicle barriers and 370 miles of fencing; the emplacement of 70 ground-based radar and camera towers along the southern border; the deployment of 4 Unmanned Aerial Vehicles and supporting systems; and increased detention of undocumented immigrants. Another benchmark for the legalization provisions would be the implementation of the employment verification system described below.

The bill would also increase the penalties relating to passport, visa and immigration fraud; mandate the detention of criminal aliens; establish increased penalties for illegal entry and reentry into the country; and simplify background checks for immigration status. Employment Verification Measures in the Proposed Law
Another important element of the proposed law is the establishment of a system of visa status verification by employers intended to reduce employment of undocumented workers. The system provides employers with a means of verifying potential workers’ legal status quickly by electronic means.

All employers would be required to electronically verify newly hired employees within 18 months of the law’s enactment, or on the date on which the Secretary certifies that the system is operational. Once the system is implemented, all employers would be required to verify all current employees within by 3 years after enactment.

The law would also increase penalties significantly over current law for employment of workers without work authorization.

Future of the Bill
The proposed law will be introduced in the Senate for debate immediately and into the House of Representatives shortly thereafter. The bill must now be approved by both houses of Congress. There is substantial opposition on both the political left and right to terms of the bill, but it remains to be seen whether that opposition is enough to defeat the careful compromise that has been reached. There could be some changes to the terms, especially the point system or the guestworker provisions, before Congress approves a final Immigration Reform law. There is some possibility that the opposition to the bill will be so strong that no final bill will be agreed upon before the Congress recesses at the end of summer.

If the Congress agrees on a final immigration reform bill, it must go to President Bush for approval. The President has already publicly stated his support for this version of the law.

A New Immigration Reform Bill Introduced In Congress.

by Christopher A. Kerosky, Esq.

A major new piece of comprehensive immigration legislation was introduced in the House of Representatives on March 23rd that would offer undocumented persons here a chance at gaining legal status. The proposed law was introduced by Representatives Luis Gutierrez (D-Ill) and Jeff Flake (R-AZ), but it has bi-partisan support. It has been named the “Strive Act” (Security Through a Regularized Immigration and a Vibrant Economy Act of 2007).

In addition to including a number of enforcement measures to toughen the borders, the new proposed law creates a program providing nonimmigrant status for undocumented immigrants and their spouses and children in the U.S. for up to six years. The status would provide these presently undocumented persons with work and travel authorization and protection from removal. Persons presently in removal proceedings, facing removal, or ordered to depart voluntarily would have an opportunity to apply for this status.

The law would apply to all undocumented persons who can prove they have been in the U.S. since January 2006 – a cut-off date two years later than the McCain-Kennedy bill approved by the U.S. Senate last year. Excluded from the legalization would be those convicted of a felony or three misdemeanors.

The law also provides these applicants and their family members with an opportunity to apply for lawful permanent resident status. Like last year’s proposed legislation, applicants would have a long wait for the green card – most likely at least six years or more. The law states that persons currently waiting in immigrant backlogs for their permanent residence would be ahead of undocumented applicants in the line.

In order to qualify for a green card, those now undocumented would have to do the following in addition to the normal requirements of permanent residence:

• Maintain employment during the six-year period prior to applying for their green card
• Pay a $1,500 fine plus application fees
• Meet certain English and civic requirements
• Pay all taxes.

Also, prior to actually getting their green card, persons now undocumented would have to leave the United States and re-enter. This provision apparently was inserted to answer the complaints of those who say immigration reform should not be an “amnesty” for those here “illegally”.

This bill contains a number of other positive elements: It would establish a reasonable guest worker visa, allowing for 400,000 worker visas to fill non-professional positions

• It would increase immigrant employment-based visas to help alleviate the immense backlog that exists
• It would virtually double the number of H-1B visas for professional workers
• It would provide more visas for family reunification

These provisions will be analyzed in more detail in my next article.

The chances that some immigration reform legislation will be enacted before the end of the year are very good. Neither political party wants to delay this issue until next year, which will be an election year. There appears to be consensus that some sort of legislation should be passed this year and it will likely contain a component of legalization for the undocumented.

Any bill passing the Congress will have to be approved by President Bush. The President has publicly stated his support for legislation providing a path to permanent residence for those here out of status presently.

Election results make Immigration Reform more likely.

by Christopher A. Kerosky, Esq.

There is little doubt that the recent sweep of both the U.S. Senate and the House of Representatives make it more likely that immigration reform will be enacted by Congress in the next two years. The question is really: when will it occur and how many undocumented immigrants will benefit under its terms? Certainly, there is now greater hope than at any time since September 11th that undocumented immigrants will have a way to legalize their status in the United States.

To understand this situation better it is appropriate to consider what occurred earlier this year in Congress on the subject of immigration reform. In May of this year, after a long fight, the Senate of the United States approved a comprehensive immigration reform bill, which provided for persons who were out of status to legalize provided that they had an employer-sponsor and met other conditions. After six years, they would be eligible for permanent residence, provided that they continued to have a job, paid their back taxes and learned English.

This bill also contained the following additional positive elements:

• Increased numbers of professional visas (H1B visas) 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

However, the Senate bill never went to the House of Representatives for consideration. The leadership of the House of Representatives was adamantly opposed to the legalization elements of the bill, claiming it amounted to amnesty.

Now, the key Republicans who blocked passage of the bill in the House are no longer in control. The Chairman of the Immigration subcommittee, Rep. James Sensenbrenner – an enemy of any expansion of immigrant rights in this country – will be simply an ordinary member of the House, and his party will be in the minority, starting in January. The current Speaker of the House and Majority leader, both of whom opposed legalization of undocumented immigrants, will no longer hold their positions come January. These republicans who blocked consideration of immigration reform this year will no longer have any real control over legislation considered by Congress next year.

Instead, the House Speaker will be Nancy Pelosi of San Francisco, who supported the immigration reform bill passed by the Senate. The Immigration subcommittee of the House will undoubtedly be led by someone who supported immigration reform – very possibly by one of four House Democrats on the subcommittee. With a majority of over 20 votes, there is a good chance the full House would approve the same bill which passed the Senate in May.

Of course, the bill must be re-introduced in the Senate as well. However, the Republicans who largely opposed immigration reform have lost six seats and control of the Senate as well. This means that control of legislation in the Senate will also be in the hands of Democrats who generally favor immigration reform. The Judiciary Committee of the Senate will now be controlled by Democrats who supported the reform bill and they will likely approve it and send it to the whole Senate for consideration. When it reaches debate in the full Senate, immigration reform will have better prospects of passage than this year. At least several of the Republicans who lost their bids for re-election to the Senate – Sen. Talent of Missouri, Sen. Burns of Montana, Sen. Allen of Virginia and Sen. Santorum of Pennsylvania – were opposed to immigration reform and were replaced by Democrats who will likely support it. The pro-reform group should easily be able to find the 51 votes necessary for its passage.

The final step toward approval is the signature of the President. President Bush has encouraged passage of immigration reform including legalization of undocumented immigrants. As such, it is highly doubtful that he will oppose such a bill if it resembles the law passed by the Senate this May.

In short, the likelihood of immigration reform in the next 24 months is much greater since the election results have given the Democrats control of Congress. This includes a path to permanent residence for undocumented immigrants.

The problem is that, with other important issues such as raising the minimum wage, prescription drug laws, environmental legislation, and most of all, the war in Iraq occupying the attention of Congress, no one can say when the Senate and the House will each address the issue of immigration reform again.

Persons here out of status will still have some months to wait before they will be able to start down any road to permanent residence, which so far does not even exist as proposed legislation in the U.S. Congress.

An Update on Immigration Legislation.

by Christopher A. Kerosky, Esq.

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.

Analysis Of Immigration Reform Bill Approved By The Senate Judiciary Committee And Now Pending In The Full Senate.

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.