Legal Alert: Senate Begins Debate on "Grand Bargain" on Immigration

Date   May 24, 2007


The U.S. Senate began debate this week on a wide-sweeping immigration reform bill proposed last week by a bipartisan group of senators, who have formed what one senator called a "fragile coalition" in an effort to reach the so-called "grand bargain" on immigration.


The U.S. Senate began debate this week on a wide-sweeping immigration reform bill proposed last week by a bipartisan group of senators, who have formed what one senator called a "fragile coalition" in an effort to reach the so-called "grand bargain" on immigration. President Bush has indicated his support for the bill, calling it a way to "meet important goals in addressing border security and enhancing interior and worksite enforcement." If passed, this bill could result in the most extensive revision of the U.S. immigration policy in over forty years.

The bill provides a path for aliens currently working in this country without authorization to obtain legal citizenship (the new "Z" visa category) and creates a new temporary guest worker program. However, these provisions only take effect after the Department of Homeland Security certifies that certain border security and enforcement benchmarks have been met.

The bill also addresses the unlawful employment of aliens by creating an electronic eligibility verification system, reducing the list of documents upon which employers can rely to determine identity and work eligibility, and substantially increasing the penalties for unlawful hiring, employment, and record keeping violations.

Additionally, the bill revises the way green cards are allocated by reducing the emphasis on family relationships and creating a merit-based points system.

The legislation is extensive and this Alert only addresses a few of the provisions that are most likely to impact employers.

Electronic Employment Verification

The bill requires the government to create an electronic employment verification system to determine whether the information submitted by the individual to prove identity and work authorization is consistent with the information maintained by the Secretary of the Department of Homeland Security or the Commissioner of Social Security. All employers will be required to participate in this system with regard to all new employees hired on or after 18 months from the date the section is implemented.

Additionally, employers in national security, critical infrastructure and federal contractors may be required to comply with the electronic verification requirements when the bill is enacted. All employers will be required to verify current employees no later than three years after passage of the bill.

Employers will be required to submit the following information regarding employees: name, social security number, and alien identification or authorization number (for noncitizens). This information must be submitted no later than the first day of employment but no earlier than the date of hire.

The system will provide a confirmation, non-confirmation, or further action notice to the employer. If the employer receives an initial confirmation, it should record the confirmation and need take no further action. If the employer receives a further action notice, it must inform the employee of this and the employee may contest the notice. An employee cannot be discharged on the basis of work eligibility while he or she is contesting a further action notice. However, if an employer receives a final non-confirmation, it must discharge the employee.

Nonimmigrant Temporary Worker

The bill creates a new temporary worker category (the Y visa category) that does not take effect until certain border security enforcement triggers are met. The Y visa category includes a new Y-1 visa for nonseasonal temporary workers; a seasonal temporary worker visa (the current H-2A visa would become the Y-2A and the current H-2B visa would become the Y-2B); and a new Y-3 category for spouses of Y visa holders.

The Y-1 visa would be available for a maximum of three two-year periods of admission, as long as the two-year periods are separated by a one-year period in the alien’s home country. Y-1 workers who enter the country with family members must demonstrate an income at 150% of the poverty level and that they have health insurance for the dependants. Y-1 visa holders who enter with dependants receive only a two-year visa that is not renewable.

The Y-2A and Y-2B visas are for ten months and are non-renewable.

To obtain Y workers, the employer would have to certify that these workers would not be paid less than the greater of the actual wage paid by the employer to all other similarly situated workers or the "prevailing competitive wage."

Z Category Visa

The bill establishes the Z nonimmigrant visa category, which applies to individuals who were unlawfully employed in the United States as of January 1, 2007. Spouses, children and elderly parents of such workers may also obtain a Z visa if they meet certain requirements.

The Z applicant must pay a processing fee, a penalty, a state impact fee and a penalty for each derivative (family member who obtains a Z visa). Additionally, the Z visa applicant must complete a detailed application form, submit fingerprints for a background check, be interviewed by the USCIS, register for the selective service (as required) and provide evidence of continuous physical presence, employment or education. If accepted, the Z visa applicant will receive an interim work authorization and, if approved, will receive a Z visa.

The Z visa is valid for an initial four years and may be extended indefinitely if certain conditions are met.

Revision of Immigration Benefits System ("Green Card")

The bill would rebalance the ceilings on different types of visas. It would set a worldwide ceiling on family-based immigrant visas until backlogs in certain preference categories have been eliminated and then would significantly reduce the ceiling for family-based visas. It would also set three different worldwide ceilings for merit-based visas.

Additionally, the bill eliminates employment preference categories 1, 2 and 3 and replaces the employment preference with a merit-based preference system. Merit points are assigned based on different categories: employment (number of points varies based on the type of occupation); education (number of points varies based on type of education); and English/Civics (number of points varies based on whether the person is a native English speaker, the person’s score on the TOEFL test, and whether the person has passed the USCIS Citizenship test in English and Civics). For those who have a total of fifty-five or more points in these categories, up to ten more points can be earned based on extended family categories. Additionally, Z visa category workers can earn points for agricultural work, U.S. employment, home ownership, and medical insurance.

The bill also eliminates certain family preference categories, redefines immediate relatives to exclude parents of U. S. citizens, and creates a new preference category for parents of U.S. citizens.

Status of Legislation

Senate Majority Leader Harry Reid has announced that he will allocate two weeks for debate on the bill. It will then go to the House of Representatives and any conflicts between the final Senate version and the final House version will have to be resolved before it is sent to President Bush.

There is no doubt that any final immigration legislation will have a significant impact on employers. We will continue to follow this legislation and will keep you advised. If you have any questions regarding the legislation, please contact the Ford & Harrison attorney with whom you usually work or any member of Ford & Harrison’s Business Immigration practice group.