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
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