Relief for U.S. Businesses? The Secure America and Orderly Immigration Act of 2005

On May 12, 2005, Senators John McCain (R-Arizona) and Ted Kennedy (D-Massachusetts) introduced a bi-partisan bill that promises enhanced national security balanced with relief for U.S. businesses that rely on a foreign workforce. We are delighted to report that Laura Reiff, the GT Business Immigration Group’s national practice group chair and co-chair of the Essential Workers Immigration Coalition (EWIC), was instrumental in the drafting and subsequent negotiations and revisions to this bill.

Relief for Employers and Foreign Workers

Particularly interesting in the proposed legislation is the follow-through on the “guest worker” programs that President Bush highlighted extensively during his presidential re-election campaign. The proposed essential worker program’s temporary visa – the H-5A – will allow individuals who are in the U.S., both legally and out-of-status, or who are not yet in the U.S. to apply for a three-year temporary visa to come to work in the U.S.

Unlike the H-1B or L-1 visas that also have a three year duration, the H-5A will not require a specific educational background or an ongoing affiliation with a multinational organization; rather, only a U.S. employer sponsor and a qualified employee will be involved. The educational and experiential qualifications can be limited and will allow for workers to come to the U.S. in both skilled and unskilled positions. The prospective temporary worker will simply need to show a work history, clean criminal record, and proof that they are not a security threat to the United States. Once granted the status, the worker will be authorized to work with other employers, this is different from the existing employer specific H-1B and L categories. However, if the worker is laid off, he/she will need to find new work or leave the U.S. within sixty days. The temporary visa will be valid for an initial three-year period and will be renewable for an additional three year period for a total of six years. Businesses throughout the U.S., particularly those who have been trying to hire for lower skilled and non-degreed positions, will welcome the introduction of this new nonimmigrant visa option.

Upon conclusion of the six year period in H-5A status, the employee will be eligible to apply for legal permanent residency in the U.S. This new option would be available through the new H-5B visa that would not require certification of a job offer through the current labor certification process with the Department of Labor. The proposed H-5B section would even allow individuals who had been in the U.S. illegally to pay a fine to complete the process in the U.S. without returning to their home country. The worker will simply need to demonstrate that they have a future position in the U.S. and will also need to meet additional security and background checks and pay fines (if they had previously been here illegally). Additionally, for those in the country but out of status, a showing of knowledge of English and civics and a payment of any back taxes will be required.

Family Unity and Backlog Reduction are two other key aspects of this legislation that should also be welcomed by U.S. employers and their foreign workforce. Relief for family and employment based immigrants includes eliminating immediate relatives of U.S. citizens from the numerical limit on the number of family based immigrant visas, increasing the total available visa numbers on green cards to clear up the current agency backlogs and increasing the total visa numbers available to employers to hire permanent workers from 140,000 to 250,000 per year.

Improved Enforcement and Compliance Mechanisms

All employers will similarly appreciate changes on the enforcement and compliance side featured in the proposed legislation. The bill mandates the creation of a new electronic work authorization system that will, once the system is fully operational, ultimately replace the current I-9 system that has been in place since 1986. The new system will be applied universally. Undoubtedly, this will be a welcome change for many employers who have been confused about the completion and retention of I-9 forms and may not have understood which documentation was appropriate to use as evidence of work authorization. For more on changes to the I-9, please refer to the article below. Additionally, the bill will provide the Department of Labor with expanded powers to conduct random audits to ensure that workers are protected.

Greater Border Security

On the security side, the bill will require the development and implementation of further border security initiatives that will increase information sharing between the U.S., Mexico and Canada, as well as between federal, state and local agencies. Additionally, the bill addresses federal reimbursement to state and local agencies for the incarceration of undocumented aliens and provides funding for other related criminal justice costs associated with the undocumented aliens. Similarly as part of the enforcement changes, immigration related documents will be upgraded to make them further tamper-resistant and US-VISIT will be similarly updated to reflect increased biometrics for travelers.

Concluding Thoughts

The provisions of The Secure America and Orderly Immigration Act of 2005 clearly and accurately reflect the needs of U.S. businesses by incorporating relief in an area that, to date, has been largely unrepresented – the essential workers. In addition, the bill addresses other significant problem areas within the immigration field including undocumented aliens, significant agency backlogs, visa number quotas and enhanced border security. The business immigration group at GT strongly supports this legislation and is delighted to have been part of this incredible work of practice group chair, Laura Reiff. If you have questions about the bill or the role of the EWIC, please consult with your GT legal professional or Laura Reiff at 703-749-1372 / reiffl@gtlaw.com for more information.

Return to GT Immigration Observer Table of Contents