A Guide to S.744: Understanding the 2013 Senate Immigration Bill

What is the purpose of this guide?

The Immigration Policy Center has written this guide to provide policymakers, the media, and the public with an easy-to-understand guide to the main components of S. 744 and the purpose behind them.

The guide follows the structure of the bill, with a separate section addressing the cost-benefit analysis of S. 744, a resources page, and a glossary.

The Basics

What is S. 744?

The “Border Security, Economic Opportunity, and Immigration Modernization Act,” or S. 744, is a broad-based proposal for reforming the U.S. immigration system written by a bipartisan group of eight Senators known as the “Gang of Eight.” Senators Charles Schumer (D-NY), John McCain (R-AZ), Richard Durbin (D-IL), Lindsey Graham (R-SC), Robert Menendez (D-NJ), Marco Rubio (R-FL), Michael Bennet (D-CO), and Jeff Flake (R-AZ) drafted S. 744 in the spring of 2013.The bill addresses all aspects of the immigration process from border and enforcement issues to legal immigration reforms. It makes changes to the family and employment-based visa categories for immigrants, provides critical due-process protections, increases the availability of nonimmigrant workers to supplement all sectors of the workforce, and provides legal status to 11 million undocumented immigrants within the United States. The Senators intended this legislation to address these issues “…by finally committing the resources needed to secure the border, modernize and streamline our current legal immigration system, while creating a tough but fair legalization program for individuals who are currently here.”

If enacted, S. 744 would require that a series of enforcement measures, or “triggers,” go into effect prior to completing the legalization process. For example, although undocumented immigrants will be allowed to register for the new Registered Provisional Immigrant (RPI) program almost immediately, they cannot apply to become lawful permanent residents until the Department of Homeland Security (DHS) has certified 90% effectiveness in apprehensions and returns along the United States-Mexico border and a phased-in mandatory E-verify program is in place. The Development, Relief, and Education for Alien Minors Act (DREAM Act) and Agricultural Job Opportunities, Benefits, and Security Act (AgJobs) are both incorporated into the RPI program, but applicants who qualify under those provisions will be eligible to obtain legal permanent resident status more rapidly.

Other aspects of the bill, such as changes in family and employment-based immigration categories, would go into effect gradually, giving DHS the opportunity to reduce extensive backlogs that have built up due to a lack of available visa numbers. One of the key aspects of the bill, backed by both labor and business, is a new “W” worker program that could expand over time based on workforce needs. Although W visas are for a limited duration, workers in W status may eventually be eligible to apply for lawful permanent residence, marking the first time that such less-skilled nonimmigrant workers would be allowed to transition to permanent resident status without an employer’s sponsorship. S. 744 also expands permanent visas for many foreign graduates from U.S. universities in the sciences and related fields, increases over time the number of temporary high-skilled visas based on demand, and expands opportunities for entrepreneurs and investors to come to the U.S.

S. 744 also addresses long-overdue shortcomings of the immigration removal, detention, and court processes, including authorizing access to counsel for certain vulnerable populations, giving immigration judges more opportunity to make case-by-case determinations on removal decisions, and streamlining the asylum program. It also increases the penalties for certain criminal activities, making it more difficult or impossible to become a legal resident due to drunk-driving convictions, gang activity, domestic violence, passport fraud, and identity theft. Finally, S. 744 encourages immigrant integration through more targeted programs and foundations to help legal immigrants become citizens.

What is the bill’s procedural standing?

The bill was introduced in the Senate on April 16, 2013, by Senator Schumer of New York and was referred to the Committee on the Judiciary. A total of 301 amendments (including the manager’s amendment) were proposed by committee members. A third of those were considered and 92 were incorporated into the bill by voice vote. On May 21st, S. 744 passed out of the Senate Judiciary Committee on a vote of 13-5. Debate on the Senate floor is expected to begin in mid-June.

How will debate proceed on S. 744?

When a bill passes out of committee in the Senate, it is up to the Majority leader to decide when to bring it to the floor. Once a bill is brought to the floor, the amount of floor time it receives for debate and amendment is usually negotiated between the Majority and Minority leaders, depending on the bill’s complexity, interest among the Members, its significance, and other matters before the Senate.  The Majority Leader has said he plans to bring debate on the bill to a close by the July 4th recess. Based on the number of amendments offered in committee (301), and statements made by many Senators, the debate promises to be long and intense, with hundreds of amendments offered (although the number that will actually be considered during debate will be far less).

How many votes are needed to actually pass S. 744?

While the bill itself requires only a majority of the Senators voting, in order to get to that vote, Senators must first agree to close debate, otherwise known as invoking “cloture.” Under Senate rules, this vote requires 3/5 of the Senate, or 60 votes, to pass. For instance, no final vote on the 2007 CIR bill was taken because the Senate failed to invoke cloture on the bill twice.

What happens if S. 744 passes?

If the Senate passes S. 744, it will be sent to the House of Representatives for consideration. In the case of S. 744, which contains proposals to raise revenue, the House is unlikely to simply take up the Senate bill, but could introduce essentially the same bill on the floor.  Members of the House may introduce their own comprehensive package, which could be taken up; or the House may choose to consider a number of separate immigration bills that are packaged together for consideration. If the House passes a bill that differs from the Senate bill, the two bills will need to be reconciled. This may happen via a conference committee of appointed Senators and Members of the House of Representatives who would draft a compromise bill to reconcile the Senate and House versions.

How is the bill organized?

The bill is broken into four large sections, or titles, each of which has many subparts. You may hear references to Border Security (Title I), Immigrant Visas (Title II), Interior Enforcement (Title III), and Reforms to Nonimmigrant Visa Programs (Title IV), or you may hear individual portions of the bill referenced, such as section 2741.

Title I, Border Security, includes requirements for various border plans, triggers, and the structure for DHS oversight (sections 1101 to 1121). Title II deals with the legalization of the current undocumented population, the regulation of future legal immigration flows, and the integration of newcomers (sections 2101 to 2553). Title III, Interior Enforcement addresses E-Verify, humanitarian reforms, and due process protections (sections 3101-3807). Title IV addresses existing visa programs for nonimmigrant workers and creates a new W visa for lesser-skilled workers, along with a government office to monitor the current employment numbers in the United States and adjust visa caps accordingly (sections 4101-4913).

Title I: Border Security

Title one of the bill and its preamble address issues of border security, the oversight of the border, and the security goals (“triggers”) that must be achieved before other provisions of the bill are implemented. This part of the bill establishes that the security of the border is a primary concern as part of a comprehensive strategy to ensure a functioning, fair, and effective immigration policy.

Border Enforcement and Triggers

What resources are currently dedicated to border security?

In recent years, the resources dedicated to southern border security have increased dramatically. Since 1993, when the current strategy of concentrated border enforcement was first implemented, the annual budget of the U.S. Border Patrol has increased from $363 million to more than $3.5 billion. S. 744 would further increase the investment in border security.

What additional resources does the bill dedicate to border security?

The bill makes significant additional investments in border security, including the following: the hiring of 3,500 Customs and Border Protection officers; authorizing the National Guard to construct additional fencing (including double fencing in high-risk areas); increasing mobile surveillance; deploying aircraft and radio communications; constructing additional Border Patrol stations and operating bases; hiring additional prosecutors, judges, and staff; providing additional training to border officers; and increasing prosecutions of illegal border crossings. The bill also mandates 24-hour surveillance of the border region using mobile, video, and portable systems, as well as unmanned aircraft. $1.5 billion will be dedicated to the Southern Border Fencing Strategy, $3 billion will be spent to carry out the Comprehensive Southern Border Security Strategy, and—if necessary—$2 billion will be allocated to implement the recommendations of the Southern Border Security Commission.

What are the Southern Border Fencing Strategy, Comprehensive Southern Border Security Strategy, and Southern Border Security Commission?

The bill requires that the Secretary of Homeland Security submit within 180 days of enactment of the bill a Southern Border Fencing Strategy that will identify where fencing, double fencing, infrastructure, and technology should be deployed. The Secretary must also produce a Comprehensive Southern Border Security Strategy within 180 days that will establish “effective control” of the border, which is defined as persistent surveillance and a 90 percent effectiveness rate in preventing illegal crossings. If effective control of the border is not established within five years, the bill mandates the creation of a bipartisan Southern Border Security Commission that will be responsible for recommendations on how to achieve border-security goals.

What goals must be reached before undocumented immigrants can gain legal resident status?

One of the primary purposes of the bill is to provide a path to Lawful Permanent Residence (a “green card”) for the existing undocumented population via the new Registered Provisional Immigrant (RPI) program. Before Registered Provisional Immigrants can apply for Lawful Permanent Resident status, several security goals, or “triggers,” must be met: the Southern Border Security Strategy must be substantially deployed and operational, the Southern Border Fencing Strategy must be substantially completed, a mandatory employment verification system for all employers must be implemented, and an electronic exit system at air and sea ports must be implemented.

What oversight and protections will be implemented?

An independent Department of Homeland Security Border Oversight Task Force, with 29 members appointed by the President, including 12 members from the northern border region and 17 from the southern border region, will be established to make recommendations on border-enforcement policies, the impact of these policies on border communities, the protection of due-process rights and civil rights of border residents and migrants, and the training of border personnel, among other duties. The Secretary of Homeland Security will be required to report to Congress regarding the effectiveness of border security, the effectiveness of surveillance, wait times for border crossings, and border staffing. In addition, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman’s authority will be expanded to cover all DHS immigration agencies, including U.S. Customs and Border Protection.

Related Resources 

Title II: Immigrant Visas

This title addresses permanent legal status in the United States. It creates a Registered Provisional Immigrant program for undocumented immigrants and incorporates versions of the DREAM Act and AgJOBS, for undocumented young people brought to the U.S. as children and for agricultural workers, respectively. It provides sufficient visas to erase the current backlog of family and employment-based visa applicants in the next 7 years, eliminates or changes some family-based immigration programs, and creates a new merit system that is based on points accrued through education, employment, and family ties.

Subtitles A and B: The earned legalization programs

These subtitles create paths that allow undocumented immigrants currently in the United States to show they are eligible to legalize their immigration status and eventually obtain U.S. citizenship.

The Registered Provisional Immigrant program

Who is eligible and what are the requirements?

The bill will allow undocumented immigrants to apply for Registered Provisional Immigrant (RPI) status if they have been in the U.S. since December 31, 2011, have not been convicted of a felony or three or more misdemeanors, pay their assessed taxes, pass background checks, and pay penalty fees, among other requirements. Applicants must also be admissible under current law, which excludes individuals who have committed certain offenses, participated in terrorist acts, or belong to other excluded categories. Spouses and children of RPIs would also be eligible. RPIs will not be eligible for federal means-tested public benefits such as Medicaid, food stamps, and benefits under the Affordable Care Act.

How does the RPI program reflect the special circumstances of undocumented immigrants?

Many undocumented immigrants eligible for RPI status could be disqualified based solely on immigration status-related violations of immigration law. Consequently, certain grounds of inadmissibility or other factors that would disqualify a large segment of the undocumented population do not apply to RPI applicants. For example, the 3 and 10 year bars do not apply. Judges also have greater flexibility to make case-by-case determinations involving minor criminal violations or other infractions for humanitarian purposes, to promote family unity, or in the public interest. Individuals who have been deported are generally ineligible, but may be permitted to re-enter the United States and apply for RPI status if they meet all other requirements and have close relatives who are U.S. citizens or Lawful Permanent Residents.

When can undocumented immigrants apply for RPI status?

If S. 744 becomes law, there will be a delay between its enactment and implementation of the RPI program. The bill gives the government a year to publish regulations governing the program. The official application period should begin on the date of final publication of these regulations and is set to run initially for one year, with a possible extension of an additional 18 months at the discretion of DHS. In the interim, S. 744 prohibits removal of individuals who are eligible for RPI status, although it does not stop DHS from putting anyone in immigration proceedings who has committed crimes or is otherwise ineligible for status.

How long does RPI status last?

The initial grant of RPI status is good for six years. RPI status may be renewed for six years if the immigrant has remained continuously employed, or demonstrates income or resources not less than 100% of the poverty level, or qualifies for certain exceptions; undergoes another background check; pays taxes; and pays an additional penalty, among other requirements.

When will Registered Provisional Immigrants be eligible for Lawful Permanent Residence?

Registered Provisional Immigrants will be able to apply for Lawful Permanent Residence (a “green card”), but they must go to the “back of the line” and have been in RPI status for at least 10 years. They will receive permanent residency only after all other applications submitted before the enactment of the bill have been processed. The requirements will include maintaining RPI status, paying taxes, meeting English proficiency requirements, maintaining employment, showing available resources or meeting listed exemptions, showing they will not become a burden on the state, passing background checks, and paying an additional penalty.

When will Registered Provisional Immigrants be eligible for naturalization?

Registered Provisional Immigrants who have been lawfully present for 10 years before becoming permanent residents will be able to apply for U.S. citizenship after maintaining permanent resident status for 3 years. Therefore, undocumented immigrants who legalize via the RPI track will have to wait at least 13 years to become citizens.

What background checks and security measures are part of the RPI process?

RPI applicants must submit biographic and biometric data (fingerprints) to allow DHS to conduct national security and law-enforcement checks. Applicants may be required to appear for a personal interview to determine eligibility. They must pass an additional background check when they renew their RPI status, and nationals of countries that are deemed a threat to national security may be required to pass additional screenings.

Undocumented immigrants who arrived as children

Is the DREAM Act part of the RPI program?

Yes. A version of the DREAM Act has been incorporated into the RPI program to address the special situation of many undocumented immigrants who entered the U.S. as children. DREAMers, however, are placed on a more accelerated path to permanent legal status and citizenship.

How do DREAMers qualify for RPI status? Is there a different timeline for DREAMers?

DREAMers apply for RPI status under the same application process as other undocumented immigrants. However, they may apply for Lawful Permanent Residence after five years in RPI status. To qualify for this accelerated program, an applicant must have entered the U.S. before he or she turned 16, have been in RPI status for at least five years, have earned a high-school diploma or GED, have completed at least two years of college or four years of military service, and have passed an English test and background checks, among other requirements. DREAMers may apply for citizenship as soon as they receive their green card.

Undocumented agricultural workers

Is there a special program for farm workers?

Yes, a special path to legalization based on the AgJOBS bill is provided for agricultural workers. Undocumented agricultural workers will be eligible for an immigrant status called a blue card. To qualify they must have performed at least 575 hours or 100 work days of agricultural employment during a two-year period ending December 31, 2012, and must pay a penalty and pass background checks. They must meet the same criminal and admissibility requirements as applicants for RPI status. They can be in blue-card status for up to eight years after regulations are published, and will not be eligible for federal means-tested public benefits. Blue-card holders may apply for Lawful Permanent Resident status five years after enactment of the bill if they have continued to work in agriculture, paid their taxes, and pay a fine. They may apply for citizenship after being permanent residents for five years.

Why are there different programs for DREAMers and Agricultural Workers?

S. 744 recognizes that legalization is not a one-size-fits-all proposition and consequently tailors programs to meet the characteristics of two important subsets within the undocumented population—young people who have grown up in the United States and therefore already meet many of the basic requirements for legalization, such as English fluency and knowledge of civics, and agricultural workers, who are offered an incentive to remain in agricultural work through an accelerated legalization process.

Subtitle C: Legal Immigration Reforms

This subtitle lays out reforms and new components of the immigration system and addresses backlogs and immigration levels. In particular, it creates a new merit-based point system with two tracks that award points to immigrants with educational credentials, work experience, and other qualifications. It will function alongside the current family-based immigration and employment-based immigration programs, which allow U.S. companies, citizens, and legal permanent residents to file petitions for relatives or employees.

The merit-based point system (Track 1)

What is the merit-based point system and how does it work?

This merit-based point system allows foreign nationals to obtain Lawful Permanent Residence in the United States by accumulating points mainly based on their skills, employment history, and educational credentials. At the same time, the current immigrant visa categories for siblings and adult married children of U.S. citizens, as well as the diversity visa program, are eliminated and replaced by this system.

How many visas will be allocated each year to the merit-based point system?

Between 120,000 and 250,000 visas would be allocated each year based on the point system. The visa cap would fluctuate using a formula that takes into account the number of visas requested the previous year and the unemployment rate.

What are tier 1 and tier 2 and how do they work?

The system would be divided into two “tiers,” one for higher-skilled immigrants with advanced educational credentials and experience, and a second for less-skilled immigrants. Beginning in the 5th fiscal year after the enactment of the bill, 50% of the visas will be allocated to applicants with the highest number of points under tier 1, and 50% will be allocated to applicants with the highest number of points allocated under tier 2.

How will points be allocated?

The allocation of points in both tiers is based on a combination of factors, including education, employment, occupation, civic involvement, English language proficiency, family ties, age, and nationality. There is no “passing score” that needs to be reached to qualify. However, the system prioritizes immigrants who are young, educated, experienced, skilled, and fluent in English. Family ties and regional diversity are less-heavily weighted factors. Ten points maximum of a total of 100 are assigned based on family ties, and 5 points are given to nationals of countries with low immigration to the United States. Years spent working in the U.S. as a W nonimmigrant worker can be credited towards a merit-based application under Track 1, tier 2.

How will these new point systems affect immigration flows?

Proponents of a point system have argued that we must move away from family-based immigration to a system that is tied to economic necessity. The merit-based point system is designed to balance a range of factors in assessing who should be admitted to the United States, but it remains an experiment. Supporters argue that similar systems have been used in other major industrialized nations. Critics have pointed out that it puts some applicants at a disadvantage, such as women, people who work in the informal economy or do unpaid work, relatives of U.S. citizens with insufficient formal education and employment history, older adults, and applicants from less-developed countries. An amendment offered by Sen. Mazie Hirono (D-HI) and adopted in committee requires the Comptroller General to issue a report on the point system’s impact on vulnerable populations over time.  

Track two merit-based system

How will the track two system clear the backlog of pending visas?

The current immigrant visa system has created enormous backlogs of applicants, who sometimes have to wait decades to get an immigrant visa. This track will clear the backlog of applicants by allocating visas to applicants with pending applications over the course of 7 years starting in 2015, allowing these immigrants to qualify for Lawful Permanent Residency by 2021.

Who can obtain Lawful Permanent Resident status under this track?

Starting October 1, 2014, family- or employment-based applicants whose applications have been pending five years or more under the current system will become eligible for a visa. The Secretary of DHS is authorized to devise a process for distributing these visas over a seven-year period. In addition, the track two merit-based system makes visas available to RPIs who have maintained that status for at least 10 years.

Why is the track two system considered a “merit-based” system for visa allocation?

It is critical to the authors of the bill that the visa backlog be eliminated and that those who followed the rules receive legal status before RPIs can qualify for green cards. This section essentially ties those programs together, authorizing DHS to do what it takes to eliminate the backlogs within seven years. In the meantime, RPIs must earn their green cards through employment, learning English, paying taxes, and other contributions to the country.

Family-based immigration

What are the main changes to the family-based immigration system?

Petitions for spouses and children of Lawful Permanent Residents under the current family-based system will be considered immediate relatives, making them exempt from current visa caps and immediately eligible for green cards. There will no longer be an immigrant category for siblings of U.S. citizens, and visas will no longer be available to married sons or daughters of U.S. citizens who are over 30 years of age. These relatives would have to apply under the new point system or find another avenue in order to immigrate. The annual worldwide level of family-based immigrant visas will remain at 480,000 per year, minus the visas assigned to immediate relatives the previous year, but not less than 161,000 per year starting 18 months after enactment.

How does S. 744 address existing problems in the family-based immigration system?

S. 744 makes significant improvements to the family-sponsored immigration system, but does not address all criticisms. Notable improvements include eliminating the current backlogs in the system by 2021, recapturing unused visas from previous years, allowing parents of U.S. citizens to bring their minor children at the time they immigrate, and allowing for immediate reunification for spouses and minor children of Lawful Permanent Residents. On the other hand, the bill eliminates the categories for siblings and adult married children of U.S. citizens if they are over 30. In addition, the bill does not allow U.S. citizens or LPRs to petition for green cards for their same-sex spouses.

Employment-based immigration

What are the main changes to employment-based immigration?

Country-specific limits on employment-based immigrant visas, which have caused enormous backlogs for applicants from large countries like China and India, are eliminated. This will allow applicants from these countries equal access to the available employment-based visas. Certain highly skilled and exceptionally talented immigrants are also exempted from the worldwide cap, such as those who have extraordinary ability or advanced degrees in STEM fields from U.S. universities. STEM graduates would also be exempt from the labor certification requirement. The annual worldwide cap on employment-based immigrant visas will remain at 140,000 per year.

How does S. 744 address existing problems in the employment-based immigration system?

Some of the provisions in S. 744 would result in meaningful improvements in the employment-based system. As mentioned above, the bill will eliminate the current backlogs of pending applications in the system by 2021, and will allow the recapture of unused visas from previous years, in addition to preventing future backlogs of applicants from oversubscribed countries by eliminating country-specific caps. Highly skilled and very talented immigrants will be exempt from the cap, including immigrants of extraordinary ability, multinational executives, graduates of U.S. universities with advanced degrees in STEM fields, and physicians who fill special medical needs such as working in medically underserved areas. Spouses and children of employment-based immigrants will also be cap exempt, which means that each of the 140,000 visas allocated will go to an applicant hired for a job.

Integration into society

How does the bill help new immigrants integrate into society?

Compared to reform proposals from 2006 and 2007, S. 744 contains stronger devices designed to facilitate immigrants’ language acquisition, civic engagement, financial self-sufficiency, and upward economic mobility. In particular, the bill creates three new organizational structures: the Office of Citizenship and New Americans, the Task Force on New Americans, and the United States Citizenship Foundation.

What is the Office of Citizenship and New Americans?

This office will be responsible for promoting training on citizenship responsibilities for new immigrants, providing advice on integrating immigrants into society, establishing goals for immigrant integration, and providing information about English and citizenship education programs.

What is the Task Force on New Americans?

The Task Force will coordinate the federal response to immigrant-integration issues and advise on how to carry out policies and goals concerning access to education, workforce training, health care policy, access to naturalization, and community development.

What is the United States Citizenship Foundation?

The Foundation will expand citizenship-preparation programs, coordinate integration programs, and provide assistance to individuals applying for RPI status, LPR status, and naturalization.

Other changes to immigrant and non-immigrant visa programs

What other changes are made to the visa programs?

Various changes are also made to the V visa program, including making it available to siblings of citizens and permanent residents. Additional protections are provided for children of the beneficiaries of visa petitions, stepchildren, widows, and orphans. The EB-5 investor visa program and the Conrad-30 program for physicians working in medically underserved areas are reformed and made permanent. This title also describes aspects of the new nonimmigrant less-skilled W visa worker program that pertain to agriculture. The provisions of the W visa program are split between Title 2 and Title 4 in the bill. The general aspects of the program and the Bureau of Immigration and Labor Market Research, which oversees it, are explained in Title 4, and the agricultural worker aspects of the program, including the W-2 contract worker and W-3 full-time worker, are explained in Title 2. For the purposes of this guide the W visa program will be explained in its entirety in Title 4.

Related Resources

Title III: Interior Enforcement

This title addresses DHS’s ability to enforce immigration laws while correcting many procedural problems with the immigration system. Central to Title III is a phased in, mandatory E-Verify employment eligibility verification program. The bill also addresses important refugee and asylum issues, enhances due-process protections in the immigration courts, increases the oversight of detention facilities, and toughens penalties for gang-related convictions and other offenses.

E-Verify

What is E-Verify?

E-Verify is an internet-based system that allows businesses to determine the eligibility of their employees to work in the United States by comparing information from an employee’s Employment Eligibility Verification Form I-9 to data from U.S. government records. Because the system is not currently mandatory, less than 1% of employers in the U.S. are enrolled in E-Verify.

What are the main changes to E-Verify in the bill?

Under S. 744, E-Verify will be expanded and made mandatory for all employers over a period of five years. The bill requires identity verification through the use of enhanced fraud-proof documents, such as tamper- and identity-theft resistant Social Security cards, and the use of a photo tool to allow employers to verify an individual’s identity. Employers are required to confirm identity and employment authorization within three business days after the employee accepts the offer of employment. A mandatory entry and exit system will be implemented at all air and sea ports to help ensure that foreign nationals are leaving the United States as required. The bill will take precedence over local and state laws related to the hiring of foreign nationals, creating a uniform national standard. However, the bill does not allow the creation of a national identification card.

What are the sanctions for those who do not comply with the new requirements?

Employers who knowingly hire, recruit, refer, or continue to employ an unauthorized immigrant or fail to comply with E-Verify requirements are subject to increased civil or criminal penalties. Civil fines are increased up to $25,000 per violation for employers that have committed multiple violations related to hiring unauthorized immigrants. Criminal penalties include two years in prison for employers who have repeatedly hired unauthorized workers, in addition to fines of up to $10,000. Employers who comply with the system’s requirements in good faith will not be penalized if DHS later determines that they have employed an unauthorized worker.

What are the main protections for employers and workers regarding the implementation of E-Verify?

The bill requires employers to use the E-Verify system for work authorization verification only, and prohibits its use for discriminatory purposes. The system will be subject to regular assessments and audits to detect misuse, discrimination, fraud, identity theft, and civil rights or privacy violations. Workers will have direct access to their information in the system, and will have the right to appeal a determination that they are not work authorized. Reports on the effects of the system on employers, U.S. nationals, and work-authorized individuals will be required.

When will the use of E-Verify become mandatory?

Generally speaking, all employers must use the E-Verify system within five years. Employers with more than 5,000 employees must use it no later than two years after publication of the regulations. Employers with more than 500 employees must use it within three years, with an exception for agricultural employers, who are given four years. All remaining employers subject to mandatory E-Verify must use the system within four years, with an exception for Indian tribal government employers, who are given five years, and for employment that is “casual, sporadic, irregular, or intermittent.”

Does E-Verify continue to pose concerns even in the context of a comprehensive reform package?

As with the current I-9 form process, which requires an applicant to show proof of identification and work authorization in order to be employed in the U.S., E-Verify is a system for validating work authorization. As a web-based system that relies on the integrity of other databases for its information, it has the potential to be more reliable than a human being merely glancing at documents, but it also has the potential to create significant confusion and delay for some employers and employees. S. 744 attempts to balance those possibilities, putting an emphasis on creating a more reliable database, offering clear safeguards for dealing with mistakes, and protections for privacy.  Moreover, because it is tied to the implementation of a legalization program, it will be far more likely that the vast majority of people subject to E-Verify will be work authorized.

Protections for Asylees and Other Vulnerable Populations

What improvements does S. 744 make to the asylum process?

Currently, the law requires that asylees apply for asylum within one year of arrival in the United States. This requirement may prevent immigrants with legitimate claims of persecution from gaining asylum protection if their applications were delayed due to fear, lack of information, or other circumstances beyond their control. The bill eliminates the one-year deadline. The bill also eliminates barriers to family reunification and authorizes asylum officers to grant asylum during credible fear interviews. In the interest of efficiency, the President, in consultation with the Secretary of State and DHS, may designate certain persecuted groups with common characteristics whose resettlement in the United States is justified by humanitarian concerns or is otherwise in the national interest as meeting the requirements of refugee status. The bill also clarifies that asylum applicants are entitled to work permits within 180 days of filing an asylum application.

What protections does the bill include for victims of human trafficking and workplace abuse?

S. 744 includes expanded protections against human smuggling and trafficking. Employers recruiting workers abroad are required to register with the Secretary of Labor and post a bond. Employers must disclose the conditions of the visa and the work contract to the worker and are prohibited from charging the workers recruitment fees. S. 744 expands the availability of the U visa to include victims of serious workplace abuse, slavery, or other serious violations of workers’ rights. The bill increases penalties for human smuggling activities and establishes a pilot program to prevent child trafficking.

What other protections does the bill have for other vulnerable immigrants?

The bill provides additional protections for immigrants who are battered by their spouses and for other vulnerable individuals. Battered immigrants will be eligible to receive certain public housing, and will be eligible for work authorization while their VAWA petitions are pending. The bill also permits qualified stateless individuals to apply for Lawful Permanent Resident status.

Protections for Immigrants in Removal Proceedings

How does the bill protect the rights of immigrants who are in court proceedings?

Under current law, immigrants in removal proceedings do not have the right to appointed counsel if they cannot afford to hire a lawyer. The bill changes this in the case of unaccompanied minor children, immigrants with serious mental disabilities, and other particularly vulnerable individuals, and requires that a lawyer be appointed to represent them. The bill requires that immigrants in proceedings have access to evidence in the government’s files and adds additional immigration judges, additional court staff, and additional training programs for judges and staff.

How does the bill protect the rights of immigrants who are detained by the government?

The bill limits the use of solitary confinement and bars its use with children and the seriously mentally ill. In addition, the bill provides for secure, humane alternatives to detention such as electronic monitoring, increases oversight of detention facilities, mandates prompt custody determinations and bond hearings, and provides guidelines for the detention of the parents and caregivers of children.

How do these changes improve the administration of the removal system?

The bipartisan sponsors of S. 744 recognized that one of the consequences of the broken immigration system has been the deterioration of due-process protections and a severely strained immigration court system. The changes proposed to both systems begin to address long-standing criticisms of the government’s failure to adequately use alternatives to detention, to provide sufficient resources to immigration courts to process cases, and to ensure humane treatment of those in the government’s custody. Justifications for these measures include not only ensuring appropriate standards of treatment, but efficiency and cost arguments related to the best way to manage a highly complex system.

Penalties for Crimes

What is inadmissibility and deportability?

Non-citizens may be found inadmissible or deportable and removed from the U.S. if they have committed certain offenses. Immigrants who have been admitted to the United States can be subject to deportation, or found to be deportable. Immigrants who are applying for admission to the U.S., or are applying for lawful status in the U.S., may be found to be inadmissible.

How does S. 744 increase penalties for immigrants involved in gangs and other criminal activities?

The bill makes immigrants inadmissible or deportable if they have been convicted of an offense that involves participating in a street gang and promoting the criminal activity of the gang. Undocumented immigrants involved in gangs will also be ineligible for Registered Provisional Immigrant status. The bill makes immigrants inadmissible if they have been convicted of a crime of domestic violence, stalking, child abuse, child neglect, or child abandonment for which they served at least one year in prison, or if they were convicted of more than one such crime. In addition, during committee mark up, Senator Grassley (R-IA) proposed, and the committee adopted, an amendment that makes three drunk-driving offenses punishable as an aggravated felony. Criminal penalties for illegal entry, for visa fraud, passport fraud, and passport trafficking are also increased.

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Title IV: Reforms to Nonimmigrant Visa Programs

This title reforms the nonimmigrant visa programs for skilled workers and creates new programs for less-skilled workers, investors, and visitors. The visa cap on the H-1B skilled-worker program is raised while worker protections are increased. A new W nonimmigrant visa for less-skilled workers creates a new process for hiring foreign labor. A new nonimmigrant investor visa and an immigrant investor visa are also created. These employment-related programs aim to ensure that the U.S. economy has access to the labor and investment that it needs to drive growth and innovation, while protecting workers from exploitation.  

Nonimmigrant Skilled Worker Visas

What are H-1B and L-1 visas?

Nonimmigrant visas are short-term visas for foreign workers who do not intend to stay in the U.S. permanently. The U.S. economy has a critical need for temporary highly skilled workers, particularly in the fields of science, technology, engineering, and math (STEM). Nonimmigrant skilled worker visas allow foreign workers with advanced skills to come to the U.S. temporarily to fill these needs. The most common skilled worker visas are the H-1B and L-1 visas. The H-1B visa is for foreign workers with at least a bachelor’s degree who come to work temporarily in a specialty occupation. The L-1 visa is for foreign workers who have gained essential experience abroad with a multinational employer that needs to transfer them here temporarily to assist in their operations in the United States.

How does S. 744 change the H-1B and L-1 visa programs?

The bill raises the annual H-1B visa cap, raises H-1B wage requirements, and requires employers to make significant efforts to recruit U.S. workers. The current H-1B visa cap of 65,000 is replaced with a cap that fluctuates between 115,000 and 180,000 based on a market escalator formula that considers employer demand and unemployment data. The lowest level wage that must be paid to H-1B workers is raised by narrowing the range of wages that employers must pay H-1B workers. Employers are required to place mandatory ads and perform other good faith recruitment to find U.S. workers before hiring an H-1B worker. Employers cannot intentionally displace U.S. workers and must pay an additional fee to place an H-1B worker with another company. Heavy users of the H-1B program, such as H-1B dependent employers or H-1B skilled worker dependent employers, have additional obligations, such as offering the job to U.S. workers first and a prohibition on having more than 50% H-1B or L-1 workers in their workforce. The bill also makes it easier for H-1B workers to change employers and limits employers’ ability to place L-1 workers with other employers.

Nonimmigrant Less-Skilled Worker Visas

What is the new W nonimmigrant visa program?

The bill creates a W nonimmigrant visa for less-skilled workers, which includes agricultural and nonagricultural workers. When the W visa program is operational, it will replace the H-2A agricultural worker program. W workers are admitted for a three-year period, renewable for an additional three-year period, and must be certified to work for designated agricultural employers or registered non-agricultural employers in registered positions. The program will be supervised by a new entity, the Bureau of Immigration and Labor Market Research, which will designate shortage occupations and provide data and recommendations. The annual W visa cap for registered non-agricultural positions will fluctuate between 20,000 and 200,000, and employers must pay the W workers the actual wage or the prevailing wage for the occupation, whichever is higher. The cap for the construction industry will be 15,000. Agricultural workers under contract will receive W-2 visas, and full-time “at will” agricultural workers will receive W-3 visas. The Bureau will set the cap for agricultural workers according to factors related to demand, usage, and economics. Employers are required to recruit U.S. workers for their positions, attest that working conditions of U.S. workers will not be adversely affected, and attest that there are no U.S. workers available for the jobs. A complaint process will be established to report violations, and penalties will include back wages, benefits, and civil penalties.

Why is the W visa different from past efforts to create lower-skilled worker programs?

The W visa program is the result of extensive negotiations between labor and business groups to create a program that is simple and efficient enough to meet business needs while protecting workers’ wages and working conditions. It is very different from previous temporary worker programs because it allows workers to leave their jobs to work for other employers registered with the program, creating a pool of labor that is responsive to labor market needs. W workers could also eventually apply for Lawful Permanent Residence using Tier 2 of the new Track 1 merit-based point system, marking the first time that such workers would be allowed to transition to permanent resident status without employer sponsorship. It is designed to be easier for both employers and workers to use than the H-2A temporary agricultural worker program, which has been criticized for being bureaucratic and inflexible.

Investor Visas

What are the new investor visas created by S. 744?

The bill aims to attract additional investment and create jobs in the U.S. through new investor visa programs. It creates a nonimmigrant investor visa, or X visa, which is for entrepreneurs whose businesses have attracted at least $100,000 in investment, or have created no fewer than three jobs during a two-year period prior to the application and generated $250,000 in annual revenue. This is a temporary nonimmigrant visa that is granted for three years. The bill also creates an EB-6 immigrant investor visa that leads to Lawful Permanent Residence. This visa is for entrepreneurs who have a significant ownership in a U.S. business and have had a significant role in the start-up of the business. The business must have created at least five jobs and must have received at least $500,000 in venture capital or investment, or created five jobs and generated $750,000 in annual revenues in the prior two years.

Other Nonimmigrant Visas

What other changes are made to nonimmigrant visa programs?

The bill also creates and changes several other visa programs. It allows F-1 student visa holders to have dual intent. This means that students coming to the U.S. are allowed to have the intent to stay either temporarily or permanently. The bill creates a nonimmigrant retiree visa for foreign nationals over 55 who do not work, have health insurance, and have $500,000 to buy a residence in the U.S. The bill creates a Canadian retiree tourist visa that will allow Canadians over age 55 with a residence in Canada to enter the United States for up to 240 days. The bill modifies the H-2B nonimmigrant visa program, which is for non-agricultural, less-skilled workers who fill temporary, peak-load, or seasonal needs. It requires that H-2B workers be paid the prevailing wage or the actual wage paid to U.S. workers, whichever is higher, and requires that employers attest that they do not displace U.S. workers. The bill also allows employees of multinational corporations to enter the United States for 90 days to oversee operations or for 180 days for leadership and development training.

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Cost-benefit Analysis of S. 744

What is a CBO score?

Nearly every bill that is approved by a full committee of either House of Congress is subject to a formal cost estimate by the Congressional Budget Office (CBO). The report produced as a result of this analysis is known as the CBO score. The purpose of this analysis is to aid in economic and budgetary decisions on a wide assortment of programs covered by the federal budget. In general, the CBO estimates what the net fiscal impact of a bill would be, considering both the costs and the benefits associated with the implementation of the bill.

The CBO analysis of S. 744: What is at stake?

The CBO is currently in the process of analyzing the fiscal costs and benefits associated with S. 744. The legislation would enable millions of undocumented immigrants to earn legal status and would revamp the legal immigration system. It also proposes new border and interior enforcement measures. All these components will have an effect on government finances. In other words, the bill will result in additional government revenue and new public expenses. At the same time, the different components of the bill will clearly have an impact on the economy. The CBO score may affect the type of amendments offered to the bill, the increase or decrease of programs offered, and the rhetorical arguments used to support or oppose the bill.

Has the CBO scored past immigration bills?

CBO scores are available for both the 2006 and 2007 immigration reform proposals. On both occasions, the scores showed that revamping the legal immigration system would result in a boost to the economy. However, the fiscal and economic impact of legalizing the undocumented population (which much of the specialized literature shows would be positive) was not adequately addressed.

What are the expected benefits of a legalization program?

The legislation would enable millions of undocumented immigrants to earn legal status and ultimately U.S. citizenship, thereby enhancing their contributions to the U.S. tax system. In particular, legal status would enable legalized immigrants to earn higher wages over time, thereby increasing their income tax contributions. Higher wages also translate into greater buying power, which would increase the ability of legalized immigrants to build assets, start new businesses, and create new jobs. All of these outcomes would produce fiscal gains. Specifically, legalized immigrants would contribute more to the public treasury not only in income taxes, but also sales, property, and business taxes. In addition, immigrants who are legalized would pay fees and fines to help cover some of the costs that the implementation of the law would entail. The key fiscal question, therefore, is whether or not the full range of tax increases facilitated by legalization are sufficient to offset the costs of the public-benefit programs which legalized immigrants would be eligible to draw upon after 10 years.

What are the expected benefits of future immigration flows?

Future immigration flows through more flexible legal channels would clearly benefit the economy because of the incorporation of new labor. As experts have shown, the impact of these new flows on the Gross Domestic Product (GDP) over the next 10 years would be somewhere between $1.5 and $1.8 trillion.

How much would enforcement-only cost?

Enforcement is costly and, as the sole policy instrument aimed at curbing unauthorized immigration, it is highly inefficient. In fact, studies have shown that “a mass deportation and zero-immigration policy would decrease U.S. GDP by $2.6 trillion over 10 years.”

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Published On: Fri, Jun 07, 2013 | Download File

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