On April 16, 2013, the “Border Security, Economic Opportunity, and Immigration Modernization Act” was introduced in the United States Senate. The bill was the result of months of work by the bipartisan “Gang of Eight” senators, and is the first major effort at comprehensive immigration reform in the United States since 2007.
The Senate bill is more than 800 pages long and addresses almost every area of immigration law, from creating a path to citizenship for the undocumented population in the United States, to changing family immigration rules, to modernizing our approach to high-skilled immigration. Following its introduction, more than 300 amendments to the bill were introduced by members of the Senate Judiciary Committee, and the Committee began debate on those amendments on May 9, 2013. After five days of “markup” sessions, the Committee approved the bill and cleared the way for it to be debated before the full Senate in June.
As with any major change in the law, there have been a wide range of claims made by both advocates and opponents of the bill about how the changes proposed by the bill would affect the immigration process. Sorting out fact from rhetoric is always a challenge, but there are some truths and some myths that can be identified.
1. The bill will grant amnesty to 11 million undocumented immigrants and make them all U.S. citizens – FALSE.
The bill would create a system through which people currently in the U.S. unlawfully could obtain provisional immigrant status, and over time ultimately become green card holders and then eventually U.S. citizens. It is incorrect, however, to describe this system as amnesty, and it will take a very long time for these individuals to become U.S. citizens. Instead, they would need to pay both fines and fees for the process, show employment, pay taxes, and then still wait many years to ultimately even obtain legal permanent resident status (a “green card”). This is a far cry from amnesty, but it would provide a way that doesn’t exist now for those individuals to come out of the shadows and build a future in the United States.
2. Employers seeking to hire high-skilled foreign workers will need to pay more money to do so – TRUE.
Hiring high-skilled foreign workers is already expensive, and the bill would increase those costs. Except in the case of those who simply break the rules, the claim that companies rely on high-skilled foreign workers as “cheap labor” is simply not true, even under current law. The bill contains a number of provisions that would drive the costs of employing high-skilled foreign workers up even further. Companies applying for an H-1B work visa for a new hire would have to pay government fees that would total nearly $5,000, and would have to pay the worker a salary that in many cases would be greater than what they would need to pay an equally qualified American worker. For example, an entry-level software engineer in Silicon Valley would need to be paid nearly $94,000 per year, almost $9,000 per year more than the average entry-level salary indicated by the government’s own wage survey. Employers already have a strong economic incentive to hire American workers if they are available, and they’ll have an even stronger incentive to do so if these provisions become law.
3. Foreign students graduating from colleges in the U.S. will get a green card stapled to their diploma – FALSE.
The bill will make it much easier for some foreign students graduating from colleges in the U.S. to obtain a green card, but there will still be an application process. In particular, students graduating with an advanced degree in a STEM field (science, technology, engineering, or mathematics) will be exempted from the labor certification process, which would otherwise require testing of the local job market to determine if there is a qualified U.S. worker to perform the job. This is a simple recognition of what the data already shows – that there is a shortage of needed STEM expertise in this country. However, those students will still need a job offer from an employer in the U.S., and they will still need to go through an application process to prove that they have an advanced STEM degree from a U.S. college or university. They will also need to go through all of the background and security checks that are already part of the process to obtain a green card. The green card process for advanced degree U.S. STEM graduates will be faster and simpler, but a green card won’t be stapled to their diploma.
4. People going through the employment-based immigration process who have been waiting in quota backlogs for many years will get green cards quickly – TRUE.
One of the more positive and least controversial provisions of the bill would be a provision that would clear a large part of the backlog in the employment-based green card process. By making changes that would exempt some high-skilled workers and immediate family members from the quota, and by recapturing and using some 325,000 green card numbers that were allocated under the law in the early 1990s but never used, a large amount of the backlog could be eliminated. Many high-skilled immigrants currently face a wait of ten or more years to get through the backlog simply because the demand for high-skilled green cards far exceeds a quota that hasn’t been changed in more than two decades. The bill would go a long way toward fixing this problem.
5. Only high-tech companies and workers will be affected by changes made under the bill, and all companies will benefit – FALSE.
The bill does have a strong focus on improving immigration options for high-skilled workers in STEM fields, and recognizes that there are not enough U.S. workers to meet the economy’s needs in that area. However, high-skilled workers in a variety of fields – not just high-tech – will be affected by many of the changes. H-1B visas, for instance, are not limited to STEM workers, and they will not be under the bill. In addition, because advanced degree STEM workers will no longer count against the green card quota, high-skilled workers in other fields will be able to use green card quota numbers that those STEM workers otherwise would have used. The bill would also create a new merit-based green card system that has never existed in U.S. immigration law before, where people who don’t have a college degree but do have other skills valuable to the U.S. economy will have a process for getting a green card. Finally, some companies, whether in the high-tech industry or not, may be very seriously affected by severe restrictions that will impact their ability to do business. For example, companies with a workforce made up of more than 15 percent H-1B workers will not be able to place those H-1B workers at client locations. This could affect both those companies and the companies that rely on their services. Certain companies will also be required to pay wages to H-1B workers that are at least the mean wages for the occupation in the geographic area of employment regardless of experience level. For all these reasons, some companies are strong supporters of the bill, and some have serious concerns.
6. The bill will change the law so that foreign workers will be able to take jobs currently being done by Americans – FALSE.
The bill would substantially strengthen protections for American workers. A big change that would be made from current law is that under the bill, for any company to hire an H-1B worker, they would first need to advertise the job to American workers on a website managed by the Department of Labor, and cross-posted on the websites of the state workforce agencies. Every employer will need to be prepared to demonstrate to the Department of Labor that it has taken good faith steps to recruit US. workers. In addition, if the company is H-1B dependent or H-1B “skilled-worker” dependent (companies with either at least 15 percent of their total workforce in H-1B status or with 15 percent of their positions requiring a college degree held by workers in H-1B status), the company would need to attest that it has offered the position to any U.S. worker that applies who is equally or better qualified than the H-1B worker. Employers who are H-1B dependent or H-1B skilled-worker dependent would also have to attest that they have not displaced a U.S. worker for at least 90 days before and after filing the H-1B petition. The bill also flatly prohibits all employers from displacing government workers and public school teachers with an H-1B worker, regardless of the circumstances. In addition, the government would have a major increase in its enforcement authority, in everything from the way it processes applications to how long it can take to investigate complaints about fraud or violations of immigration rules. The government would be required to conduct annual audits of employers that have a workforce made up of more than 15 percent H-1B or L-1 workers and would receive much greater funding for enforcement.
7. The bill is guaranteed to pass and become law – FALSE.
While there is a lot of bipartisan support for the bill, it still has some major hurdles to cross. The bill must next be approved by the full Senate. Once there is Senate approval, the bill either needs to be introduced in the House of Representatives, or the House needs to pass its own parallel bill. If there are differences between what is passed in the House and what is passed in the Senate, there would then need to be a conference process to resolve the differences before the bill can ultimately be approved. At that point, the bill would need to be signed by President Obama. The White House has been supportive of immigration reform, but the final provisions of the bill will be important, and as with any bill, the President retains the authority to veto the bill if it contains provisions that he will not accept. In the event of a veto, only a two-thirds majority of both the House and the Senate would allow the bill to become law.
While we are certainly closer to meaningful and comprehensive immigration law changes than we have been in a very long time, the future remains uncertain. If there are changes, some will be positive for U.S. employers, and some will not. The only certainty at this point is that the outcome is uncertain, and only time will tell whether we ultimately see changes to our immigration laws.
Bo Cooper is a Partner in the firm’s Washington, DC office, and leads the firm’s Government Strategies and Compliance Group. He provides strategic business immigration advice to a variety of clients, including companies, hospitals, research institutions, schools and universities. Daryl Buffenstein is a Partner in Fragomen’s Atlanta office. His experience includes testifying before Congress on various corporate immigration issues and writing key business provisions in major pieces of immigration legislation over the past 16 years. Kevin Miner is a Partner in Fragomen’s Atlanta office. His practice includes working with clients to develop effective strategies for business immigration while ensuring compliance with applicable rules and regulations.