March 27, 2007

Introduction of Comprehensive Immigration Reform Bill in the House of Representatives (STRIVE ACT)

On March 22nd, Representatives Luis Gutierrez (D-IL) and Jeff Flake (R-AZ) introduced bi-partisan comprehensive immigration reform legislation in the House of Representatives. Entitled “Security Through Regularized Immigration and a Vibrant Economy Act of 2007” (STRIVE Act) (H.R. 1645) this legislation is a good start to moving the immigration debate forward. Although it was assumed that legislation would first be introduced in the Senate -- which last year passed a comprehensive immigration reform bill in S. 2611 -- the effort in that chamber has been stalled of late.

The STRIVE Act has several major components aimed at reforming our current, broken immigration system. Those include increased border security and interior enforcement, revamping the employment verification system, a new worker program, a legalization program for undocumented workers, and reforming the current manner in which green cards are provided for in both the family- and employment-based categories so as to eliminate lengthy processing delays.

Essential to passing comprehensive immigration reform will be a strong push by the White House, which has been pushing for consensus on immigration within the Republican party. In order for legislation to pass before the summer, lawmakers on both sides of the aisle will need to come together in crafting an immigration bill that is bi-partisan, practical and comprehensive.

What follows is a breakdown of the major sections of the STRIVE Act:

TITLE I: SECURING OUR BORDERS

Sets certification requirements that must be met before implementation of the New Worker Program and the program to legalize undocumented individuals. The Secretary of the Department of Homeland Security (DHS) must certify to Congress that improvements in border surveillance technology are being implemented; that the systems and infrastructure necessary to carry out improvements to immigration document security are ready to use; and that the first phase of the Electronic Employment Verification System requiring the participation of critical infrastructure employers has been implemented.

• Increases border and other enforcement personnel, including port of entry inspectors, immigration and customs enforcement investigators and border patrol
• Accelerates technology and border infrastructure, including unmanned aerial vehicles, cameras, poles, sensors, and other technologies necessary to achieve operational control of the border
• Requires DHS to develop a national strategy for border security and comprehensive plan for surveillance of the international land and maritime borders of the United States
• Requires the U.S. to work with Mexico to address border security, human trafficking, drug trafficking, and gang activity.
• Requires DHS to make biometric data enhancements to travel documents and provide Customs and Border Protection officers with training on document fraud detection and identification

TITLE II: STRENGTHENING INTERIOR ENFORCEMENT

• Expands the types of crimes and increases penalties related to passport, visa and document fraud
• Enhances criminal penalties for aliens associated with money laundering
• Increases criminal penalties associated with firearms offenses for aliens
• Creates new immigration penalties for aliens convicted for drunk driving and gang crimes
• Increases criminal penalties associated with alien smuggling
• Enhances the criminal penalties associated with the unauthorized employment of aliens
• Allows DHS to detain certain aliens with removal orders beyond the 90 day removal period
• Enhances the address reporting requirements under the immigration law
• Requires DHS to significantly increase the number of facilities for the detention of aliens (at least 20 additional detention facilities that have the capacity to detain 20,000 aliens)
• Clarifies the authority of state and local law enforcement to enforce criminal immigration laws

TITLE III: BOLSTERING EMPLOYMENT VERIFICATION

• Sets up an employment verification system for employers to verify each new hire’s authorization to work.
• The new system will eventually apply to all workers and all new hires, and will be rolled out in phases, beginning with critical infrastructure employers and large employers.
• Creates significant civil penalties for employers who do not comply with the requirements under the new system and establishes serious criminal penalties for knowingly hiring unauthorized aliens. Debars employers who repeatedly violate these provisions from government contracts, grants, and agreements.
• Includes privacy safeguards. Limits the data that can be collected and stored in the database and requires the agencies to develop the system with maximum security and privacy protections. Requires the agencies to evaluate impact of system from a privacy perspective and complete privacy impact statements. Prohibits creation of a national identification card.
• Includes anti-discrimination provisions. Forbids employers from using the new system to discriminate against applicants or employees on the basis of nationality. Prohibits employers from terminating employment due to a tentative non-confirmation, using the system to screen employees prior to offering employment, or using the system selectively.

TITLE IV: NEW WORKER PROGRAM

Worker Visa Program: Creates a legal channel for future immigrant workers (and their spouses and children) by establishing the H-2C visa, which is valid for three years and renewable for another three. Employers must attempt to hire U.S. workers by first offering the job to any eligible U.S. worker who applies and is qualified and able. To achieve this, employers must go through a rigorous recruitment process. Employers are barred from hiring new immigrant workers if they are located in an area with an unemployment rate higher than 9% for workers whose education level is at or below a high school diploma.

The visa program has an initial cap of 400,000 which adjusts yearly based on market fluctuations. Requires H-2C immigrants who are unemployed for more than 60 days to leave the United States. Includes the following labor rights and protections for H-2C workers: fair and competitive wages, the ability to travel outside the United States, whistleblower protections, flexibility to change employers (“portability”), an opportunity to apply for conditional permanent residence after five years of employment and eventual citizenship, if desired, among other protections.

Requirements to be Met by Applicants for an H-2C Visa:

• demonstrate job qualifications and provide evidence of a job offer from a U.S. employer
• complete criminal- and terrorism-related background checks
• pay a $500 application fee
• undergo a medical exam
• show admissibility to the U.S. (certain bars to admission related to undocumented status may be waived; security and criminal related bars may not be waived)

Earned Citizenship: Provides new workers (and their spouses and children) with an opportunity to apply for conditional permanent residence and eventual citizenship. The immigrant may apply through an employer or by self-petition after working for 5 years and paying a $500 application fee.


Requirements for Earned Citizenship:

• show physical presence in the U.S. and evidence of employment
• complete criminal and security background checks
• pay $500 application fee
• meet English and civic requirements
• show admissibility (certain bars to admission related to undocumented status are waived; security- and criminal-related bars may not be waived)

TITLE V: VISA REFORMS

Overhauls the family-based and employment-based immigration system to reduce backlogs and inefficiencies. The legislation provides opportunities for high skilled workers to come to, and remain in, the U.S. It also addresses employment needs in shortage occupations, such as nursing.

It increases the number of green cards available in the employment-based categories from 140,000 to 290,000 visas per year.

Regarding H-1B visas for professional workers the STRIVE Act does several things, including:

• Expanding the exceptions to the cap by to include all nonprofit groups, not just "nonprofit research".
• Striking the 20,000 cap on beneficiaries who have earned a mater's or higher degree and including individuals with post-doctoral medical training and experience to be exempt from the H-1B cap.
• Adding an additional category of individuals exempt from the H-1B cap for those with a master's or higher degree in science, technology, engineering, or math from an American university.
• Increasing the H-1B cap to 115,000 starting in this fiscal year of 2007.
  Capping the annual number of H-1B visas at 180,000.
   

TITLE VI: EARNED LEGALIZATION

Visa Program for Qualified Undocumented Workers: Creates a new visa program (conditional nonimmigrant status) for undocumented immigrants and their spouses and children in the U.S., which is valid for six years. Provides conditional nonimmigrant visa applicants with work and travel authorization and protection from removal. Provides certain immigrants in removal proceedings, facing removal, or ordered to depart voluntarily with an opportunity to apply for conditional nonimmigrant status. Bars related to undocumented status will be waived (security and criminal bars cannot be waived);

Requirements for Conditional Nonimmigrant Status:

• Establish continuous presence in the U.S. on or before June 1, 2006;
• Attest to employment in the U.S. before June 1, 2006 and employment since that date (and submit related documentation);
• Complete criminal and security background checks;
• Pay a $500 fine plus necessary application fees (fine exemption for children).

Other Criteria for Conditional Nonimmigrant Status:

• The individual must not be ineligible to receive a visa pursuant to the Immigration and Nationality Act;
• The individual has not been convicted of a felony or three or more misdemeanors;
• The individual has not participated in the persecution of another person on account of race, religion, nationality, membership in a particular social group or political opinion;
• The individual has not been convicted by final judgment of a particularly serious crime and there are no reasonable grounds for believing that the alien has committed a particularly serious crime abroad before arriving in the U.S.; and
• There is a penalty of up to five years' imprisonment for anyone who willfully falsifies information in an application for conditional nonimmigrant status.

Earned Citizenship: Provides qualified conditional nonimmigrants and their spouses and children with an opportunity to apply for lawful permanent resident status (green card) and eventual citizenship. Applicants go to the back of the line for permanent visas; the current immigrant backlogs must be cleared before qualified conditional nonimmigrant visa applicants (and their families) can adjust to permanent resident status. Immigrants who adjust from a conditional nonimmigrant visa (including dependents) to lawful permanent resident status shall not be counted against the worldwide numerical visa caps.

Requirements for Earned Citizenship:

• Meet employment requirements during the six-year period immediately preceding the application for adjustment;
• Pay a $1,500 fine plus application fees;
• Complete criminal and security background checks;
• Establish registration under the selective service (if applicable);
• Meet English and civic requirements;
• Undergo a medical examination;
  Pay all taxes;
• Show admissibility to the U.S.; and
• Meet a “Legal Reentry” requirement during the six-year period in conditional nonimmigrant status but no later than 90 days before filing an application for adjustment to lawful permanent resident status. Paperwork processing is performed in the U.S. An exit and re-entry through any port-of-entry is required. Limited exceptions apply.

Title VI also includes the DREAM Act of 2007 and AgJOBS Act of 2007, the former to legalize the immigration status of foreign born students brought to this country at a very young age and who are now here with no documentation; and the latter legalizes the immigration status of agricultural workers who are here without the proper documentation.


TITLE VII: MISCELLANEOUS

The bill also would increase resources for the immigration court system, provides relief for immigrant victims of the 9-11 attacks and their families, and facilitates naturalization for members of the armed forces.

GT will continue to keep you updated with legislative news.