Friday, June 28, 2013

S. 744 Passes in the U.S. Senate, Next Steps to Unfold in the U.S. House

By a strong vote of 68-32, the U.S. Senate passed the “Border Security, Economic Opportunity and Immigration Modernization Act (S. 744)” as modified by the Corker-Hoeven substitute to the bill. 

What changes were made to S. 744 this week that will impact employers? 
In a complex Senate procedural move to gain more Republican votes for S. 744, the Corker –Hoeven “border surge” amendment was the vehicle to substituting the entire Senate base bill with dozens of amendments, replacing Titles I, II, III and IV, in addition to creating a new Title V.

Title I (Border Security):  It became feasible at the end of last week for the Senate to work toward a compromise that would not only help the bill gain significant Republican votes, but also adds more costs to strengthen border security, after a Congressional Budget Office report revealed that overhauling our immigration system would reduce the federal budget deficit by $197 billion over ten years and over $700 billion over 20 years, as well as increase GDP by 3.3 percent in 2023 and 5.4 percent in 2033.  The Corker-Hoeven border surge amendment adds “triggers” to the bill that require at least 180 days before a registered provisional immigrant (the legalization group) may qualify for a green card; that DHS certify a border strategy has been deployed and that certain border security measure are met which include  the completion of a 700 mile fence, implementation of mandatory E-Verify, an electronic biometric exit system at all air and seaports of entry where CBP is located, deployment of new border security technology, and an additional 38,000 or so border patrol agents on the southern border.  This title also authorizes a pilot program to notify nonimmigrants that their period of authorized stay is about to expire.  All of this would be funded through increased authorization up from $8.3 billion in the bill to $46.3 billion, allowing DHS to add a surcharge to the fees of immigrant and nonimmigrant petitions to pay for its implementation. 

Title II (Immigrant Visas):  Amendments to the bill this week made the following clarifications and changes:
  • Labor Certification Exemption.  Certain U.S. STEM advanced degree graduates who have a job offer and earned their degree five years prior to filing their petition are not only exempt from the green card caps, but also exempt from labor certification.  This is a great benefit to U.S. employers and will ensure, should the bill become law, that employers can access these workers on a fast-track to green card.
  • Modifications to the New Merit Based Green Card System.  Drops from four to three years the amount of time the new 120,000 up to 250,000 green cards per year merit-based green card cap would be available solely to the EB-3 preference and to those who adjust from the new W visa (for those with under a bachelor’s degree; lesser skilled).  Should the bill be enacted, this would still help make the EB-3 preference more current than today and the bill would still work to clear our green card backlogs in the EB-2 and EB-3 preferences within seven years-time.  

    Additionally, the bill waives the three and ten year bar to re-entry for merit based track two applicants.  Further, in amendments to the bill this week, it establishes application procedures for those merit based green card applications filed in fiscal year 2018 and beyond.  The bill states that beginning in fiscal year 2018, on October 1 during the 30-day period following and in subsequent years during that timeframe, eligible foreign nationals may submit to USCIS an application for a merit-based immigrant visa that contains information DHS may reasonably require.  Before the last day of each fiscal year in which applications are filed USCIS shall: (1) review the applications to determine which foreign nationals will be granted a merit-based immigrant visa in the following fiscal year and (2) in coordination with the DOS, provide such visas to all successful applicants.  It is unclear from the bill’s language if the merit-based green cards would be issued in the order the labor certification or petition was filed.
Title III (Employment Verification System):  Amendments to the bill this week did not make many changes to the employment verification title.  The key amendments that were made include:   Excluding exchange visitors, such as interns or trainees, from the definition of worker under the foreign labor recruiting provisions in addition to excluding J sponsors from the definition of a foreign labor contractor.  A new Subtitle I is also added that would provide tools to exchange visitors and sponsors to prevent fraud while protecting participants.  This Subtitle contains directions to the DOS to institute a variety of regulatory improvements, including compliance audits and increased fee transparency for participants.  DOS is also directed to address the issue of program fees and whether these fees should be eliminated through the regulatory process. There are, however, concerning provisions in the enforcement section of this new subtitle that may create the right of private legal action against J-1 employers by J-1 participants.

Title IV (Nonimmigrant Visas): Amendments to the bill this week include:
  • Exemption for Public Universities from Non-Displacement Requirement.  Changes to the bill’s language this week ensure public universities would be exempt from non-displacement attestations if an H-1B is placed at one or more worksites owned, operated or controlled by a Federal, State or local government entity that directs and controls the work of the H-1B.  This was a critical exemption for public universities.
  • Exemption for Non-profit Higher Education and Research Institutions from Dependency.  Generally, the bill defines dependent employersas those with 51 or more full time employees who have over 15% of their U.S. workforce on H-1B. 
  • H-1B Cap.  Bill changes this week also clarify that the number of H-1Bs cannot exceed 180,000 visas per fiscal year, even though this already appeared to be clear in the base bill.
  • Reduces J-1 Summer Work Travel Fee.   Changes to the bill this week also reduced the fee from $500 to $100 per J-1 exchange visitor coming for Summer Work Travel.
  • O and P Visa Adjudication and Premium Processing Fee Waiver.  The bill also adds the requirement that DHS shall adjudicate all O-1, O-2, O-3 and P visas within 14 days after the date on which the petitioner submits the petition with a written advisory opinion, letter of no objection, or request for waiver or the date on which the 15-day period has expired if the petitioner has had an appropriate opportunity to supply rebuttal evidence.  If the petition is not adjudicated before the end of the 14 day period DHS shall provide the petitioner with the premium processing services without a fee.
  • Limits on B and F Nonimmigrant Health Related Programs.  The bill also made changes this week to bar payment to states for medical assistance for certain temporary workers like B and F nonimmigrants, but continue to generally provide for an exception regarding emergency medical care or medical care for pregnant women and children.
  • Title V (Youth Jobs):  An amendment to the bill this week also created a youth jobs program, and provides $1.5 billion over two years to fund the program.  A new $10 surcharge on all J visas will support the creation of the appropriated fund to provide summer and year-round employment opportunities to low income youth.

Global Human Resources will continue to provide updates as this landmark legislation evolves, so be sure to subscribe to The Global Buzz by email or add it to your RSS reader.

Source: ACIP