After considering some 200 amendments to the Gang of 8’s immigration bill entitled the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (a/k/a CIR, or Comprehensive Immigration Reform), it survived the Senate Judiciary Committee overhaul and has been introduced onto the floor of the Senate for further debate taking place this month.  It is the goal of the Senate to complete their work on the Bill by the July 4^th recess. On the weekend talk show circuit, Lindsay Graham (S-SC) told conservatives who are trying to block the measure that they will doom the party.  Sen. Robert Menendez, D-N.J., went a step further and predicted “there will never be a road to the White House for the Republican Party if immigration overhaul fails to pass.”

The big question is – will the House of Representatives cooperate and pass a bill?  The theory on this is that the purpose of the legislative process right now is for the House to get a bill passed. It could be a good or bad bill; it just has to be an intact bill because once something makes it through the House, it will go to conference with the Senate and the Committee will compare the two bills and draft a compromise bill that both chambers can accept

The Temperature on Immigration Reform in the House of Representatives:

While many House conservatives agree immigration reform is a critical priority for Congress, they part with President Obama, Senate Democrats, and some in their own party who believe allowing eventual citizenship to those in the country illegally is part of the solution. They vow that they won’t support any bill that adds to the deficit and they want to see a tougher approach to border security and to the benefits issue.

Not only has the federal government consistently increased spending on border enforcement, it has also met the border-security benchmarks laid down in the three immigration-reform bills introduced in the Senate since 2006. Read more on border security here

The GOP insists that newly legalized workers now working in the shadows have no access to government-sponsored health care during their 15-year pathway to citizenship.  Democrats say that since these newly legalized immigrants would be paying taxes (millions already do pay taxes), they should be eligible for benefits.

In the end, both chambers of Congress must eventually pass the identical legislation for the bill to make its way to the President’s desk to become law.  The question is…Will House Republican leadership pass a bill or fail?

White House Official stated to the Daily Caller, “If a Gang of Eight-style bill is signed into law by the President, it will probably be one of the top five legislative accomplishments in the last twenty years.”

For a Summary of S 744 refer here.  Refer here for more on the progress of S. 744 in the Senate, the text of bill, the summary and the proposed amendments.

The House Judiciary Committee markup of the bill starts this week, and will start with SAFE Act (H.R. 2278), a bill to improve the interior enforcement of our immigration laws and strengthen national security and will then take up the AG Act (H.R. 1773), a bill to provide American farmers with a workable temporary agricultural guest worker program that will help provide access to a reliable workforce.  Read more here

The proposal, which is expected to be officially unveiled this week is titled the “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013.”

Sens. Chuck Schumer (D-N.Y.) and John McCain (R-Ariz.) — members of the bipartisan group that crafted the bill — will go to the White House today to meet with President Barack Obama about the immigration bill, according to a source familiar with the meeting.

The legislation would have a far-reaching impact on virtually every corner of the American economy.

In other compromises, the bill would reduce the categories of family members eligible for green cards, eliminating siblings of United States citizens and limiting sons and daughters of citizens to those under 31 years of age. It would eliminate a lottery that has distributed 55,000 visas each year. Those visas would be used to reduce backlogs of applicants elsewhere in the system. Republicans have sought to limit what they call family chain migration and to accomplish changes without increasing the overall number of visas.

Undocumented Immigrants

There would be two tracks: one based on the number of points immigrants could accumulate, with a fixed annual numerical cap, and another for immigrants who have been legally employed and living in the United States in good standing for 10 years or more. The second track would not have a cap.  Formerly, undocumented immigrants would be eligible to apply for initial adjustment of status referred to as  “Registered Provision Immigrant” (RPI) legal status following the filing of the Notice of Commencement of Completion by Secretary Napolitano (DHS) for each of the border security and fencing strategies.  Only undocumented immigrants who arrived in the country before Dec. 31, 2011, would be eligible for RPI status.   After 10 years, aliens in RPI status may adjust to Lawful Permanent Resident Status through the same Merit Based System everyone else must use to earn a green-card.  They must also wait until all people currently waiting for family and employment green-cards  have been cleared through the system.

The border security programs would be required to evidence a 90% effectiveness rate before any immigrants who have been here illegally would be able to apply for permanent resident green cards, achieving a series of border-security benchmarks that would require the Department of Homeland Security to spend as much as $5.5 billion over 10 years to increase enforcement and extend fencing along the Southwest border.

Undocumented immigrants would be ineligible if they have been convicted of a felony, aggravated felony, three or more misdemeanors, an offense under foreign law or unlawfully voted.

Undocumented immigrants who were deported for non-criminal reasons would be able to apply to re-enter the country if they are the spouse or parent of a child who is a citizen or lawful permanent resident, or they arrived during childhood and are eligible for the DREAM Act.  People in DREAM Act Status and the Agricultural Program can obtain their green cards in 5 years and DREAM Act kids will be eligible for citizenship immediately after they get their green cards.

High Skilled Visas

The legislation would give employers in technology and science fields tens of thousands of new temporary and permanent resident visas annually, which they have been urgently seeking for tech workers and foreign graduates with advanced degrees from American universities. It immediately raises current annual caps on temporary high-skilled visas, such as H-1Bs, to 110,000 from 65,000, while adding 5,000 more of those visas for the foreign graduates. The cap would gradually rise to 180,000 annually.

Start-Up Visa

The legislation would create a “start-up” visa for foreign entrepreneurs who want to come here to establish companies that employ Americans.

Two New Guest Worker Programs

The bill also responds to the demands of American farmers and other employers of seasonal workers by creating two new guest-worker programs, one for farmworkers and another for low-wage laborers.

One major overhaul is the new classification for low-skilled workers. Called the W-visa, a new independent statistical agency is created — the Immigration and Labor Market Research Bureau — which is to be headed by a commissioner appointed by the president and with the consent of the Senate. The new bureau would get $20 million to devise a method to calculate the low-skilled worker visa cap, determine worker shortages, survey the unemployment rate of construction workers every three months and give annual recommendations on how to improve the programs. Employer fees and other fees for hiring undocumented workers will also be used to fund the bureau.

The number of low-skilled visas available starts at 20,000 in its first year, followed by 35,000 in the second, 55,000 in the third year and 75,000 the following year. Employers must hire W-visa holders at the same wage of other employees of similar experience, or at the prevailing wage. The bill also requires that companies have not laid off an employee 90 days prior to or after hiring a guest worker.

The program also singles out the construction industry, saying no more than 33 percent of the W-visa positions would be granted to the construction industry, capping it at 15,000 per year.

Mandatory Employer Verification System

A significant change for employers would be a mandatory employer verification system to check the immigration status of their employees. With a five-year phase-in period based on size of the business, employers would be required to certify that non-citizen workers presented a “biometric green card” that matches a photo stored in an e-verify system.

Highlights Regarding Legal Immigration

The bill repeals the availability of immigrant visas for siblings of U.S. citizens once 18 months have elapsed since the date of enactment;  amends the definition of “immediate relative” to include a child or spouse of an alien admitted for lawful permanent residence; amends the existing category for married sons and daughters of citizens of the United States to include only sons and daughters who are under 31 years of age.

For Employment Green-Card Categories:  The bill exempts the following categories from the annual numerical limits on employment-based immigrants: derivative beneficiaries of employment-based immigrants; aliens of extraordinary ability in the sciences, arts, education, business or athletics; outstanding professors and researchers; multinational executives and managers; doctoral degree holders in any field; and certain physicians.

The bill will allocate 40 percent of the worldwide level of employment-based visas to :

1) members of the professions holding advanced degrees or their equivalent whose services are sought in the sciences, arts, professions, or business by an employer in the United States (including certain aliens with foreign medical degrees) and

2) aliens who have earned a master’s degree or higher in a field of science, technology, engineering or mathematics from an accredited U.S. institution of higher education and have an offer of employment in a related field and the qualifying degree was earned in the five years immediately before the petition was filed.

The bill increases the percentage of employment visas for skilled workers, professionals, and other professionals to 40 percent; maintains the percentage of employment visas for certain special immigrants to 10 percent and maintains visas for those who foster employment creation to 10 percent.

For more on the bill, please refer to the 17-page Senate Outline referenced below.

In closing, the NY Times states:

“The senators are gambling that the bill will repair enough longstanding problems in the system to attract support from a broad array of groups who will benefit from those changes, including Latinos, religious groups and labor unions who support the path to citizenship for those here illegally; big technology companies like Microsoft and Facebook, which have been clamoring for more visas for engineers and computer specialists; agricultural growers and other employers in labor-intensive businesses; and immigrant families who stand to be united more quickly with family members coming here legally.”

Article Resources:

Outline of the Bill

Politico

NY Times

House Judiciary Committee holds Hearing Feb 27, 2013 on E-Verify to determine how it works and how it benefits American employers and workers

Areas of discussion were:

• Penalties for using E-Verify as a Pre-Screening Tool:  Doing so is abuse of the system and totally prohibited, although at this time there are no penalties for pre-screening candidates prior to the acceptance of a job offer.    The Monitoring and Compliance Unit of USCIS has indicated that they do indeed  investigate employer usage particularly when there are patterns of abuse, and can be referred to OSC.
• The panel discussed that Mandatory E-Verify as part of a CIR bill should not require employers to verify their entire workforce – but just their existing employees.
• Identity Fraud:  the Social Security Administration is working on a fix to identity fraud whereby one will be able to lock in their SS# to prevent multiple usage of numbers.  SSA anticipates that this feature will be ready to roll out by the end of the year.  As it stands now, a prospective employee can present fraudulent documents for the entire I-9 process for all 3 lists and be ‘work authorized’.

Further discussion ensured regarding the “phase in” process and whether or not the national usage mandate should become effective with the existing system while changes are implemented or wait until the system is further perfected.  Additional discussion took place around establishing an official procedure for those workers who have been terminated due to incorrect Final Non-Confirmation (FNC) notices so that they can rectify the incorrect data.

The following is a statement by Rep. Gutierrez:

“Today’s hearing is remarkable because we are talking about employment verification systems in their proper context.  We are discussing how to actually make them work and work for American workers with the right sorts of protections and appeals processes that make sure any errors are corrected in a timely manner.  And we are talking about electronic verification systems as part of a broader reform that legalizes the current workforce and allows for legal immigration in the future.”

There’s certainly more to track as discussions ensue, and we will keep you posted on this topic.

A group of 8 bipartisan senators have reached a deal on the outline of a comprehensive immigration overhaul, a development that is long overdue and will assist in framing the forthcoming immigration debate in Congress.  Senator Schumer has stated that it is their plan that this can be turned into legislation by March and put into law by mid-late summer 2013.

According to a five-page document released today, the proposal provides a broad-based approach,  agreed to in principle by eight senators, that seeks to overhaul the immigration system and create a pathway to citizenship for the nation’s roughly 11 million illegal immigrants.

Although all that we have focused on for years now is nothing else but border and enforcement issues and employment verification, the proposal takes enforcement to the next level by perfecting an entry/exit tracking system, and greater usage of E-Verify or a new and improved E-Verify system that is referred to as “fast and reliable.”

Legislators will create a commission comprised of border governors, attorneys general and community leaders living along the southwest border to monitor the progress of securing the border and to make a recommendation regarding when the bill’s security measures outlined in the legislation are completed.

While security measures are put in place, those who came and remained in the USA without permission, will be required to register with the government.  This will include background checks, paying a fine and back taxes to earn probationary legal status to continue to live and work legally in the USA.

Once enforcement measures have been completed, those in probationary legal status will be required to go to the back of the line to wait their turn, pass an additional background check, pay taxes, learn English and civics and demonstrate a history of work in the US and current employment, among other requirements, to earn the opportunity to apply for lawful permanent residency (green-card) status.  Those who successfully  complete these requirements can eventually earn a green-card (legal permanent residence).

Special provisions will be accorded to the Dreamers (minor children who did not knowingly choose to violate any immigration laws) who will have different requirements that will include a pathway to citizenship..  Individuals who have been working illegally in the agricultural industry performing difficult work for low wages to ensure the safety of the food supply of the US will also be provided special requirements and will have a pathway to citizenship.

Those who graduate from an American University with a Ph.D or Master’s Degree in science, technology, engineering or math (STEM), will be awarded permanent residency (green-card status) to keep the best and brightest talent in the USA.

There are also provisions for a guest worker program referred to as “lower-skilled workers” in the proposal that will meet the needs of employers, the agricultural industry, including dairy, to find agricultural workers and lower skilled immigrants when the economy is creating jobs and fewer when the economy is not creating jobs.  If this is the H-2B program, we sincerely hope that it gets an overhaul – it’s entirely too complicated, takes too long and completely discourages employers by overburdening them with excessive details.

Resources

Please see the senator’s attached Transcript.  It’s certainly a an introduction to a long-awaited immigration conversation that is achievable – but difficult.  A link to a transcript from the President’s speech in NV; and the President’s Immigration Fact Sheet.

What are the differences between the Senate and Obama Plan?

Much of the immigration challenges around case approval for entrepreneur start ups with USCIS has to do with the cases being reviewed by untrained officers, a lack of overall guidance for attorneys and  practitioners concerning this casework, and a fundamental lack of “real world”, hands-on  business knowledge on the part of USCIS.  The agency has definitely released a nice looking mini-website marketing piece on the subject.  We remain hopeful that the implementation of the below-listed changes will be the start of a new mindset for USCIS adjudication of entrepreneur start-up casework.  In reviewing the information,  we note that the Entrepreneur in Residence (EIR) team states that they have:

– Developed and deployed a training workshop for USCIS employment-based immigration officers that focuses on start up businesses and the environment for early-stage innovations;
– Trained a team of specialized immigration officers to handle entrepreneur and start up cases;
– Modified Request for Evidence templates for certain nonimmigrant visa categories to incorporate new types of relevant evidence into the adjudicative process; and
– Developed a plan for quarterly engagements with the entrepreneurial community to ensure that USCIS stays current with industry practices.

To sustain the momentum and build on the team’s accomplishments, USCIS indicated that they have extended the EIR project through April 2013.  The project should be extended indefinitely if we are seriously courting foreign entrepreneurs to help jump-start the US economy.  Among other things, the team states that it will expand its focus to immigrant visa pathways that may enable foreign entrepreneurs to start a business in the United States within current immigration law.

We are hopeful, in light of the economic challenges ahead of us in the USA at this time, that Congress will have a light bulb moment and pass legislation for a Start-up Visa and find  a balanced and fair approach to increasing the visa alotment for STEM occupations without the punitive tradeoff approach of penalizing other visa classifications in return.  For more information on the EIR program, we link here.

By:  Timothy Sutton, Communications Editor

After two years of being deadlocked in the court system, the injunction preventing Arizona’s police force from enforcing the racially controversial “papers please,” program was lifted Wednesday by U.S. District Court Judge Susan Bolton. The decision is the latest legal move in Valle del Sol v. Whiting, a class action legal challenge to SB 1070 that was filed in May 2010. Plaintiffs include an Arizona-born citizen of Spanish and Chinese descent who was racially profiled.  “While today’s ruling puts civil rights at risk, it does nothing to undermine our resolve to continue fighting until SB 1070 is struck down in its entirety,” said Chris Newman, legal director of the National Day Laborer Organizing Network. The Supreme Court upheld SB 1070 2(b), also known as the “papers please,” provision, earlier this summer. However, Justice Kennedy suggested there would be clear constitutional problems if the law were used to target racial or ethnic minorities, or to detain people for an unreasonable period of time while checking their immigration status. Opponents assert this unwanted outcome of targeting minorities is certain to transpire.

However, Governor Jan Brewer insists that the “papers please,” law does not allow Arizona law enforcement to conduct pretext stops because it requires reasonable suspicion. In a public statement she claimed Wednesday’s District Court ruling is “one big step closer to implementing the core provision of SB 1070.” That provision? Ridding Arizona of illegal immigrants.

Arizona’s highly controversial Maricopa County Sheriff Joe Arpaio was also been quoted on the Glenn Beck Show, clarifying his interpretation of reasonable suspicion, “If they have their speech, what they look like, if they look like they come from another country, we can take care of that situation.” As Brewer and Arpaio ramp up for the certain increase in detainment leading to deportation both Cecilia Wong of the ACLU and Victor Viramontes of MALDEF have committed to continue the fight against SB 1070.

It won’t be long before SB 1070 2(b) is back in the courthouse being challenged for racial profiling and discrimination based upon national origin. We will keep you updated on those and other immigration related breaking news as it develops. For more information, contact one of our immigration professionals at info@immigrationcompliancegroup.com or call 562 612.3996.

By:  Timothy Sutton, Communications Editor

Wait Wait… Don’t Tell Me! is a comedic quiz program on NPR, testing listener’s knowledge of current events against some of the best and brightest in the news world. While figuring out what’s real news versus what’s made up, the show’s host presents a scenario to the contestant to determine if the scenario is fact or fiction. If you weren’t tuned into C-SPAN, you may have legitimately mistaken the House oversight committee’s interview, of the Secretary of the Department of Homeland Security (DHS) Janet Napolitano, as the latest episode of Wait Wait.

In this episode, members of the Congressional oversight committee rapidly fired questions at Napolitano, cutting short her responses, attempting to validate their “real news,” as something more than “made up.” The result, a trial like inquisition reminiscent of the famous scene between Tom Cruise and Jack Nicholson from A Few Good Men, with Napolitano ceremoniously remarking “you can’t handle the truth!” In reality, with grace and imperturbable resolve, Napolitano slowly roasted over the House Committee’s rotisserie.

Attacks upon the DHS Secretary by Chairman Lamar Smith (R-TX), Sensenbrenner (R-WI), Conyers (D-MI), and many more; indicated summary judgment has been rendered against the DHS for their approach to immigration enforcement, particularly in the areas of: visa overstays, boarder security, and deferred action. The business community should take note; Napolitano’s significant immigration reforms have yet to satisfy Congressional discontent. Looking forward, expect tighter regulation of business immigration under the guise of immigration overhaul.

Here are some DHS immigration reform highlights Napolitano submitted to Congress:

• Current DHS immigration reform focuses resources on repeat immigration law violators
• Numerous improvements were made to welcome business people…staying true to our history as a nation of immigrants
• Deterring Employment of Aliens not authorized to work by:

1. Eliminating high-profile raids and focusing on compliance through criminal prosecution of egregious employer violators, Form I-9 inspections, civil fines, and debarment
2. Since 2009, ICE audited more the 8,079 employers, debarred 726 companies, and imposed $87.9 million in financial sanctions

• Educated the business population through instituting:

1. E-Verify with more than 385,000 participants
2. E-Verify self-check

• Improving Legal Immigration:

1. Streamlining path for EB-5 entrepreneurs and clarifying the EB-2 classification
2. Instituted Entrepreneurs in Residence program and proposed regulatory changes in the Federal Register in April 2012 to minimize delays of family based immigration petitions
3. Reduced processing of benefit requests through Electronic Immigration System of Registration (ELIS)
4. Implemented “Study in the States” initiative to attract international students through a streamlined visa process

• Comprehensive Immigration Reform:

1. Supporting the Supreme Court’s decision on Section 2(B) of S.B. 1070

Napolitano capped off her remarks on immigration stating, “only a nationwide solution will resolve the challenges posed by the current immigration system.”

Despite the Congress clearly conveying their message to DHS, “Wait wait, don’t tell me, you think you’re doing a good job…” Napolitano’s focus on streamlining existing immigration policies is positive news for US businesses. Until the promise of streamlining comes to fruition, removing your business from the auditing radar, enrolling in E-Verify, and becoming Form I-9 compliant remain immigration best practices.

If you can handle the truth about current immigration policies, subscribe to our blog and stay informed by checking out our I-9 Employer Resource Center and join our LinkedIn Group.

By:  Timothy Sutton, Communications Editor

Former Secretary of State Condoleezza Rice was a keynote speaker at the 2012 Society for Human Resource Management Strategy Conference in Atlanta, Georgia. Rice addressed the conference on the issue of immigration reform and the future of our nation. In her speech, Rice endorsed economically unbiased immigration reform:  “It doesn’t matter where you came from, it matters where you’re going. And that belief has led people to come here for generations from across the world, just to be a part of that. And frankly, it hasn’t mattered whether it was Sergei Brin whose parents brought him here at 7 years old from Russia and he founds Google, or the guy who came to make five dollars and fifty cents. 

They are the same ambitious, risk taking people and America has been able to gather them and I do not know when immigrants became the enemy…But of course it is not just those who come here, but those who are here who happen to believe also that it doesn’t matter where you came from, it matters where you are going.”

Although she has stepped out of politics to teach at Stanford, Rice has been widely rumored as a front-runner for Mitt Romney’s presidential running mate. Her life story embodies the American Dream:  “Americans are not united by blood or ethnicity or religion or nationality. We are united by a creed. You can come from humble circumstances and you can do great things. And if that’s ever not true, then this society will rip itself apart. And then, a little girl grows up in Birmingham, Alabama, where her parents can’t take her to the movie theater or restaurant or the hospital, where she won’t have a white classmate until her parents take her to Denver.

 And yet even though she couldn’t have a hamburger at the Woolworth’s lunch counter, her parents had her convinced she could be the president of the United States if she wanted to be and she became the Secretary of State.

 Sometimes, oftentimes, what seems impossible seems inevitable in retrospect. And on that basis, we will continue to repair and to lead, and the world will move more and more towards prosperity and dignity and freedom.”

Wrapping up her keynote to hundreds of HR professionals from around the nation, Rice reiterated her unwavering faith in America as a global leader saying, “So I remain optimistic about our future, and I believe that it will be led by the most generous and most compassionate nation on earth, and that country is called the United States of America.”

Recognizing the tremendous potential and opportunity of America is the first step to reinvigorating our economy and future. Despite the persistence of mass media’s doom-and-gloom economic outlook, there is unwavering hope within US immigrant populations. If your company employs or plans to employ, immigrant or foreign workers, contact us for more information on how to successfully build upon your workforce prosperity.

By: Timothy Sutton, Communications Editor

My grandmother turns ninety-two years old this Fourth of July. Born and raised in Hawaii, she is one of seven daughters of an immigrant Chinese farmer. She grew up speaking Chinese, but raised her children to be American. To her, being American is more than just eating hamburgers instead of Chinese food; it is a love affair with endless possibilities. A bank teller, married to a butcher, my grandmother sacrificed all financial possessions to support her children’s education. The result: a doctor, an engineer, a certified public accountant, and two Ph.Ds.

America is a collection of success stories like my grandmother’s. We are a nation born out of a common struggle to establish a greater good for all. Our history may be shorter than many nations, but our progress is unparalleled.

Our strength and unity have made us a great nation that continues to rapidly progress. Our youth are both bright and ambitious. Over the last ninety-two years, my grandmother has participated in the most amazing experiment of freedom and personal liberty the world has ever known. This Independence Day, while the rockets cascade vibrant red, white, and blue hues across the night sky, another great American will be born; who knows what endless possibilities they may achieve over the next ninety-two years?