Mark A Ivener, A Law Corporation

Immigration Reform Bill Passes ‘Test’ Vote in Senate

The Senate’s bipartisan bill on comprehensive immigration reform (S. 1348) has passed a “test” vote, 69-23. Senators have now begun formal consideration of the legislation. Among other things, the new legislation would establish a guestworker program and allow many undocumented persons to remain in the U.S. under a new “Z” visa program. The bill features a “points system” in lieu of many of the current family- and employment-based visa categories. Those with certain types of education and experience, and those with English skills, would be favored under the legislation. The bill contains additional enforcement and border control provisions. Sen. Edward M. Kennedy (D-Mass.) called it “the most far-reaching immigration reform in our history.”

Under the Senate bill, up to 400,000 temporary guestworker (Y-1) visas would be provided in the first year, with increases or decreases depending on whether and when the cap is reached in the previous year. A complex three-tier system would include consideration of how long a person has been in the U.S. A separate guestworker program for farm laborers is also included.

The bill would increase the H-1B cap from 65,000 to 115,000 beginning in fiscal year 2008 and 180,000 annually after that, and would exempt from the annual cap a worker who has: (1) earned a master’s or higher degree from an accredited U.S. university; or (2) been awarded a medical specialty certification based on post-doctoral training and experience in the U.S.

The bill would require employers and subcontractors, within 18 months, to verify the legal status of new hires by using an electronic verification system. The maximum fine for hiring an undocumented worker would increase to $20,000 for each worker and repeat offenders could be sent to jail.

The Information Technology Association of America (ITAA), a lobbying group that represents high-tech companies, fears the bill will not address sufficiently the shortage of skilled workers and will make it harder to hire qualified foreign workers. ITAA President and CEO, Phillip J. Bond, noted in a letter to Sens. Harry Reid and Mitch McConnell how quickly the H-1B cap for fiscal year 2008 was reached, thus preventing many employers from recruiting skilled foreign nationals.

Among other things, the ITAA expressed concerns that the bill eliminates existing “degree equivalency” provisions so that employers would be barred from obtaining H-1B workers if their formal degrees do not correlate exactly to proposed positions; and ends dual intent for both H-1B and L-1B nonimmigrants, “interfering with the ability of companies to recruit from U.S. universities and seek a green card for them while employing them on an H-1B.”

The ITAA also said the proposed point system would “diminish America’s competitiveness by making nonimmigrant visas and green cards even more difficult to obtain.” Among other things, the ITAA noted, highly skilled professionals recruited by firms would be forced to compete with self-nominated applicants for the small number of available visas. “The proposal will move America’s immigration system away from one that is sensitive to business needs to one driven by the perceptions of government employees,” the ITAA said, adding that the proposed employment verification system, which is based on the current Basic Pilot Program, “needs a significant IT investment to make the system scalable for all employers to use as well as to reduce the current error rate within the system.”

Opposition to the bill is expected in the House of Representatives. The White House reportedly favors the bill, but its lobbying efforts are being resisted by House Republicans, who fear anti-“amnesty” sentiment among their constituents. A variety of amendments are being offered in the Senate. Meanwhile, in June, a House-Senate conference committee is expected to attempt a compromise version, which may include tougher border control and enforcement measures to be implemented in advance of any mechanism providing legal status for the undocumented.

  1. A summary of the Senate bill’s main provisions is available.
  2. The full text of the bill is available.
  3. The ITAA’s letter to the Senate is here
  4. An attachment outlining the ITAA’s key concerns is here.

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About the Author

Mark A. Ivener, A Law Corporation, a nationally recognized law firm, has successfully assisted hundreds of clients in immigration matters.