The Bush Proposal on Undocumented Workers & Comparative Pending Legislation: An Analysis© - Part II

By Alan Lee, Esq.

This is a continuation of an article by Alan Lee, Esq, which appeared in an edited version in Interpreter Releases on April 12, 2004. Interpreter Releases is widely recognized as the top journal in immigration law. Part 1 focused on the background of the illegal immigration numbers in the United States, and the Bush proposal which was outlined before the nation on TV on January 7, 2004. Part 2 will focus on three of the five bills for immigration relief presently pending in Congress and the salient details of each bill. This article is being run simultaneously in the Chinese-language newspaper, The World Journal. It is also scheduled to be the Interpreter Releases publication displayed at the annual national conference of the American Immigration Lawyers Association in Philadelphia in June 2004.

Copyright © 2004 by West, a Thomson Business. Reprinted with permission of Interpreter Releases.

B.)  Border Security and Immigration Reform Act of 2003

The Border Security and Immigration Reform Act of 2003 (hereafter "Cornyn bill"),38 is also essentially a guest worker program, creating two new non-immigrant categories, W-1 for seasonal, and W-2 for non-seasonal workers.  Seasonal workers would be allowed to stay in the United States 270 days of each year, and non-seasonal workers all year round up to 36 months before having to return home for six months prior to applying again under the program.39  Recruitment of U.S. workers would have to be done prior to admission of the alien.40   Applications would be filed to the Department of Labor with A.) an attestation if non-seasonal worker there are not sufficient U.S. workers able, willing, qualified & available to perform the job duties & that the alien’s employment will not adversely affect the wages & working conditions of U.S. workers similarly employed; B.) assurances that the employer has offered or will offer the job to equally or better qualified U.S. workers, that recruitment has been done, that insurance will be provided, wage standards met, and that the employer would comply with vehicle safety laws, & provide vehicular insurance coverage; C.) a description of the nature & location of the job to be performed; D.) The anticipated period of need; E.) the wages to be paid; & F) the method of transport if necessary.41   Employers filing under this procedure would make a copy of the application available for public inspection 1 day after filing in a fashion similar to H-1Bs today.42  To qualify, individuals would have to be at least 18 years old with no felony or three misdemeanors in the U.S., and not illegal (except one time for illegals in the U.S. on date of enactment & applying within one year of enactment).43  Illegals would have to show presence on date of enactment & admissibility except for waived grounds,44 but would not have to file an attestation other than that the alien was employed by the U.S. employer.45   Employers would have to pay wages no less than the greater of the hourly wage under section 6 (a)(i) of the Fair Labor Standards Act or applicable state minimum-wage.46  If there is no Workman's Compensation, employers would have to provide health insurance at no cost to the alien.47  The program would forgive liability for illegal behavior as it related to the immigration status of an alien occurring before participation in the guest worker program.48  It would also forgive employers for their past illegal hirings.49  Workers in the program would be allowed to travel with past illegals having to show that they were in the U.S. on the date of the law's passage and working when they applied to register under the program.50  W-1's would not be allowed to bring their family members over, while W-2's would be allowed to do so if the principal earned income at least 125% of the poverty guideline level.51  The bill would also provide incentives for aliens to remain in the program and return home on a timely basis after three years as those serving less than three years in the program or violating the terms of the program would be ineligible for the permanent residence program;52 100% of guest worker taxes from the Federal Old Age and Survivors Trust Fund and Federal Disability Trust Fund would go to the Guest Worker Investment Fund and only given to the guest workers on or after the date of departure,53 and heavy sanctions against employers would be imposed for hiring illegal aliens after the date of the Act.54

Under the Cornyn plan, adjustment of status to permanent residence would not be allowed, and the worker would have to return home to apply for residence status.55  A special program would give priority to aliens who participated in the guest worker program for three continuous years and applicants would qualify using a point system rating aliens based upon whether an employer was willing to sponsor, whether there were promotions or pay increases during the alien's employment period, whether the alien paid taxes, the proficiency of the alien in speaking English, the education of the alien, and whether the alien refrained from illegal activity.56  The number of individuals adjusted annually would be based on economic determinations made by the Secretary of Labor & the number of participants in the guest worker program.57

The proposed legislation also leaves open questions including whether workers and their families (W-2 dependents) must show non-immigrant intent to enter the U.S.; how long individuals could be without jobs and still qualify for the program; and what the fee structure of the program would be.

C.)  Agricultural Job Opportunity, Benefits and Security Act of 2003

The agricultural worker legislation, (hereafter "AgJobs")58 would limit its relief provisions to farm workers, reforming the temporary worker system while allowing adjustment of status to permanent residence in a program resembling that of SAW in 1986.  Approximately 500,000 agricultural workers could be benefited.59  It has been conservatively estimated by the Department of Labor (DOL) that of the United States’ 1.6 million agricultural workers, over 50% are undocumented & private estimates run to 75% & higher.60  In the area of temporary visas, AgJobs would reform the present H-2A system for temporary farmwork in the United States.  The employer would file a more simple attestation with the DOL akin to that of H-1B workers (instead of the present temporary labor certification process) giving assurances of no strike or lockout, that it gave notice of filing the attestation to the bargaining representatives (if a unionized position), that the position is temporary or seasonal, that the alien will receive equivalent pay & benefits as others in the same occupation that the employer has hired, and that no U.S. worker was or will soon be displaced by the hiring61 along with a description of the nature and location of the position, anticipated period of employment and number of job opportunities that the employer seeks to fill.62  The employer would offer the position to equally or better qualified U.S. workers through a recruitment process involving contact of former workers, submission of a job order to the State Employment Security Agency, and authorize posting of the job in America's Job Bank or other electronic job registry.63  14 days prior to the employment, the employer would place an ad in a local market publication best suited to attract potential farm workers.64  The employer would then make the immigration file available to the public within one day of filing the attestation,65 and upon DOL approval, file a petition to the Department of Homeland Security (DHS).66  The employer would have to guarantee housing, transportation, and the greater of the prevailing wage in the area or adverse effect wage rate.67  The floor on wages would be no less than the greater of the Fair Labor Standards Act Section 6 (a)(i) or the state minimum wage.68  To apply under the H-2A program, undocumented workers would have to leave the United States and be visaed overseas.69  The 3 and 10 year bars for individuals staying illegally in the United States for 180 days or one year respectively after April 1, 1997, would be waived.70  Ineligible classes would include those committing a felony or three or more misdemeanors in the U.S., violating certain sections of the INA relating to crimes, public charge, drug offenses and security risks.71  Those in the program would be deemed ineligible for violating any material provision of the legislation including promptly departing the U.S. upon expiration of the authorized period, or violating terms or conditions of admission.72  The bill authorizes employment for 10 months of each year in the country for up to three years and then staying overseas for one fifth of the time worked in the U.S. before becoming eligible again for the program.73

Agricultural workers currently in the country would be allowed opportunity to apply for temporary permanent residence (TPR) and then permanent residence if they met certain requirements.  The bill would allow TPR status to those who could prove by a preponderance of the evidence that they had worked 575 hours or 100 workdays (whichever was less) in a 12 month period within the 18 months ending on 8/31/03.74  For permanent residence, agricultural workers would have to show 2060 hours or 360 work days (whichever was less) from 9/1/03-8/31/09, of which 430 hours or 75 days would need to be met in three consecutive years and 1380 hours or 240 work days completed from 9/1/03-8/31/06.75  Ineligible classes would be those outlined above for the temporary program except those associated specifically with that program,76 waivers would be granted for visa fraud and 3/10 year bars for illegal stay, and other grounds could be waived for humanitarian purposes, family unity, or the public interest.77  If individuals were caught but established a non frivolous case for TPR eligibility, they would not be able to be removed and they would be eligible for work authorization.78  The time to apply for the TPR program would be the 18 month period beginning on the first day of the seventh month after passage of law, and application for permanent residence would have to be filed no later than 8/31/10.79  No specifics were given on the fee to participate in the program except that the fee schedule would be set by the DHS Secretary.80  Failure to apply within the time periods would render aliens deportable with a single level of administrative review and restricted judicial review.81  TPR's would have the right to travel,82 and the program would not be subject to immigrant visa quotas.83  Follow to join privileges would be accorded TPR families, but they would not be work authorized.84 When applying for full permanent residence, children would be allowed to follow to join so long as they were in the United States and under the age of 21 when the principal was granted TPR status.85

AgJobs, although limited in scope, appears to be legislation with few unanswered questions and even those seem to have suggested answers, e.g. how long individuals can remain without jobs to be considered out of status (the bill mandates prompt departure suggesting little or no grace period).  Like the Cornyn bill, it lacks a fixed fee structure, thus making it impossible to determine whether the program will be profitable or a tax payer burden. 

D.)  Border Security and Immigration Improvement Act 

This legislation, (hereafter "McCain/Kolbe")86 combines a guest worker program with a realistic if slow path to earned legalization.  Two new classes of visas would be created, H-4A and H-4B, the former for individuals outside the United States wishing to apply for the guest worker program, and the latter for undocumented workers already here before 8/1/03.87  Recruitment would be a central part of the H-4A program, and employers would recruit for equally or better qualified U.S. workers through a 14 day job registry and attest to give the same wages, benefits, hours and working conditions as similarly situated U.S. workers.88  H-4A's would be allowed to remain for three years with one three year extension and the right to port to another employer with payment of additional fees if done within 45 days and no illegal employment.89  Each business with less than 500 employees using the program would pay the government $500 to participate and the same amount to either renew the working visa (unless it qualified as a long-term employer) or to port an existing H-4A.90  An employer of 500 or more workers would pay $1,000 for the same instances.91 

H-4B's would be eligible to apply for the program if illegal and employed in the country before 8/1/03.92  They would spend three years in H-4B status before being allowed to transfer status to H-4A,93 at which time they would be at the starting point of an H-4A for permanent residence purposes. Employer recruitment would not be a necessary component for H-4B status.94  H-4B's would have to pay a $1,500 fine plus application fee to join the program,95 and employers would have to pay $500 or $1,000 depending on size when H-4B's change their statuses to H-4A or port to their employ.96

The bill further provides that an H-4A status will expire if the alien is unemployed 45 or more consecutive days;97 that brief trips are allowed out of the country for H-4A's;98 that H-4A or H-4B family members can enter the United States with visitors visas with the standard for issuing such not being the normal negative consular presumption of immigrant intent, but whether the family member can convince (by a preponderance of the evidence) that he/she still has a residence in the home country;99 and that children will not be allowed to follow to join H-4A's unless both parents work as H-4A's or the H-4A parent has sole custody.100 

Ineligible classes for permanent residence would include J-1 exchange visitors subject to the two year foreign residence requirement, and those with criminal, security or public charge problems.101  The legislation would forgive crimes related to unlawful entry or presence and document fraud as well as final orders of exclusion, deportation and removal.102 

An H-4A wishing permanent residence could be petitioned for immediately by an employer willing to go through the sponsorship process.103  If the H-4A did not wish to or was unable to be sponsored by an employer, he/she would be eligible to self petition after three years.104  An H-4B would face the same choices, but would not be able to apply for permanent residence until he/she attained H-4A status.105  The route to permanent residence for an H-4B would thus be three years longer.  To accommodate the anticipated large numbers applying for permanent residence, quota restrictions would be lifted.106 

Questions which are left by McCain/Kolbe are the level of proof that will suffice to show that applicants worked before 8/1/03, the acceptability of alternate proof, the meaning of the bill's terms "resided" and "be in an unlawful status" for qualifying purposes, the treatment to be given family members when principals apply for permanent residence, and how complex employment sponsorship for permanent immigration would be -  if through a regular labor certification, many aliens would be unable to succeed as the process is risky, time-consuming, costly and burdensome on employers.  Additionally, it should be noted that the jobs most would be filling are currently on the Department of Labor's Schedule B list of uncertifiable occupations.107

The author is a 25 year practitioner of immigration law based in New York City. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His 1981 case with Ronald W. Freeman, Chavan v. Drysdale, 513 F.Supp.990 (NDNY 1981), encouraged the INS to change its 3 year maximum stay period for L-1 specialized knowledge personnel, and his 1992 correspondence with John Cummings, then Acting Assistant Commissioner for Refugees, Asylum and Parole, on the fate of asylees’ children who age out (69 Interpreter Releases, July 13, 1992), has been widely cited by others in the field. Readers may visit Mr. Lee’s website at

The following is the non-final edited version of the article.

38 S. 1387 introduced on 7/10/03, referred to Senate Committee; read twice & referred to the Committee on the Judiciary.

39 Id at Title I, Section 102.

40 Id.

41 Id.

42 Id.

43 Id.

44 Id at Title II, Section 102.

45 Id.

46 Id at Title I, Section 201.

47 Id.

48 Id.

49 Id.

50 Id.

51 Id at Title I, Section 103.

52 Id at Title I, Section 104.

53 Id at Title I, Section 105.

54 Id at Title I, Section 102.

55 Id at Title I, Section 101.

56 Id.

57 Id at Title I, Section 104.

58 H.R. 3142 & identical S. 1645 introduced on 9/23/03 in both Houses of Congress – bills were referred to House subcommittee & Committee on the Judiciary respectively. 

59 Oregon, “Migrant Worker Pact Reached,” 9/23/03 at

60 AILA Issue Papers, “AgJobs – We Need Reform to Achieve a Stable & Legal Agricultural Work Force,” undated.

61 Supra, fn.58, at Title II, Section 201.

62 Id.

63 Id.

64 Id.

65 Id.

66 Id.

67 Id.

68 Id.

69 Id.

70 Id.

71 Id at Title I, Section 101.

72 Id at Title I, Section 201.

73 Id.

74 Id at Title I, Section 101.

75 Id.

76 Id.

77 Id.

78 Id.

79 Id.

80 Id.

81 Id.

82 Id.

83 Id.

84 Id.

85 Id.

86 The Border Security & Immigration Improvement Act consists of identical bills, H.R. 2899 & S. 1461, introduced by Republican members of the House & Senate in their respective chambers on 7/25/03, and referred to the House Subcommittee on Immigration, Border Security & Claims on 10/22/03 and Senate Judiciary Committee on 9/23/03.

87 Id at Section 2.

88 Id at Section 3.

89 Id.

90 Id.

91 Id.

92 Id at Section 4.

93 Id.

94 Id

95 Id.

96 Id at Section 3.

97 Id.

98 Id.

99 Id.

100 Id.

101 Id at Section 4.

102 Id at Section 3 & 4.

103 Id at Section 3.

104 Id.

105 Id at Section 4.

106 Id at Section 3.

107 20 CFR §656.11.


Copyright © 2003-2012 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.