Greenberg Traurig, LLP  


Immigration News Flash

April 6, 2007

Recent Draft of White House Immigration Reform

On April 5, 2007, a document dealing with immigration reform prepared by the White House was unintentionally released. The document outlines six major components of immigration reform: securing U.S. borders; reforming the employment verification process for employers and increasing penalties for non- compliance; creating a “Y visa” category for temporary workers; creating a “Z visa” category for current undocumented workers; requiring English proficiency, civics training, and an oath of allegiance; and making immigration policies simple, efficient, and workable.

The document calls for security measures to be in place before the implementation of the new temporary worker program and legalization programs. These are referred to as triggers. Specifically, the document calls for both the increase of Border Patrol Agents to 18,300 and increase in the size of the border barriers and use of technology. It also calls for no release of deportable aliens who are caught in the border; initial implementation of employment verification program; and the completion of the probationary registration of all undocumented workers.

In the area of employment verification, the new document calls for the creation of four types of identity cards. Future-flow temporary workers, such as those who qualify for the new Y-visa, will receive a “high-security” card. These cards will be issued at the U.S. consulate or embassy aboard after the overseas alien is paired with a U.S. job and provides biometrics and receives security clearance. Legal U.S. residents will also be issued a high-security card to document their identity and work authorization. Undocumented workers, on the other hand, will be issued a “probationary interim card” in the period between six months to twelve months from the passage of the bill. Any alien wishing to transition to legal status must receive the card during this registration period. Any aliens crossing the border illegally after a certain date will be permanently barred from the U.S. Once the background check is cleared, the probationary card holders will be eligible to receive long-term Z visas.

Concerning employer compliance, the proposal mandates the use of new, to be created electronic employer verification system for all new hires. It also calls for tougher sanctions and fines for violators and will give the Department of Homeland Security authority to cross-check personal records with the Social Security Administration.

The document also calls for the creation of Y visas for temporary workers. It calls for the institution of a numerical cap on the Y visa category, but the specific number has yet to be determined. The cap will be adjusted every two years based on market demand. To sponsor a worker under this category, the employer must show that U.S. workers are unavailable to fill the position and must list approved jobs in a publicly accessible database. The visa has two programs: a main program and a seasonal program. Under the main program an alien can work in the U.S. for two years before renewing the visa. The visa can only be renewed twice. Under the seasonal program, an alien can work in the U.S. for 9 months of the year and must remain outside of the U.S. for 3 months. There are no renewal limits to this program. Under both programs spouses and children are not allowed to accompany the main worker. There is also $1,500 processing fee for the visa. Workers can apply for the Green Card under this visa but must leave if the visa expires while the Green Card is pending.

The Z visa will be granted to current undocumented workers in the U.S. The Z visa program calls for the levying of a $2,000 fine for each three year period under the Z visa. The justification for the fines is to make the Z visa program a form of restitution rather than amnesty. In addition to the fine, there is also a $1,500 application processing fee that will be levied every three years. Z visa holders are eligible for emergency medical care and primary/secondary education for their dependants. The visa holders must renew the visa every three years and it is renewable indefinitely. The new document also requires all Z- visa holders to pass the same English and civic tests required for naturalization at the first visa renewal. Z visa holders are prohibited from sponsoring relatives to come to the U.S. Z visa holders are eligible to apply for Green Cards but only through regular programs and after backlog resolution. Applying for Green Cards will involve a hefty fee: Z visa holders who choose to pursue Legal Permanent Residency status will be required to pay a $10,000 fine ($2,000 at application and $8,000 at approval).

The new document also calls for drastic changes in current Green Card regulations. It seeks to place numerical caps and waiting periods on parents of U.S. citizens and redirect 50,000 annual visas to merit-based, national need categories. It also calls for the elimination of preference categories for the sponsoring of siblings and adult children. It will also eliminate the Diversity Visa lottery program whereby 50,000 Green Card’s are distributed annually through a lottery system. The purpose of this program has been to balance immigration to the United States by ensuring that individuals from certain countries are not overlooked. It will require a new application, biometric identifiers, and a $500 fee for every applicant who is waiting for the priority dates to become current. The goal of this reform is to change the current Green Card system to a Merit-based point system that takes into account educated and skilled workers that are critical to national competitiveness.