Status of Senate's Immigration Reform Debate 

As in the current system, employers would be required to verify the identity and work authorization of US employees by examining relevant documents, and attest to the employee's work authorization. However, S. 1348 adds significant additional burden to US employers, and employees seeking employment.  S. 1348 would require all US employers to run new hires through the government's Electronic Eligibility Verification System ("EEVS"), within only eighteen (18) months after the bill becomes law; and also require employers to re-verify all existing employees no later than three (3) years after passage of the law.   Employers would be required to register with the EEVS, and submit employee names, social security numbers, and alien numbers (non-US citizens only) no earlier than the date of hire, and no later than the first date of employment.  Re-verification would need to occur on the date work authorization expires in the case of employees with US work authorization expiring on a date certain.

The Senate proposal would increase the quota for the H-1B visas from the current figure of 65,000 to 115,000 per year, with provisions to increase or decrease this quota depending upon market demand. However, along with an increase to the annual H-1B cap, are provisions that severely restrict the use of the H-1B visa.   For example, employers would be required to attest that a H-1B worker hired will not displace a US worker six months before and six months after the filing of an H-1B petition. There also would be recruitment requirements that have to be met prior to the hiring of an H-1B worker.  In addition, employers with fifty (50) or more employees would be excluded from having more than 50% of their total workforce hold H-1B status.  Another surprising provision disallows H-1B  and L-1 workers from holding immigrant intent (the intention of obtaining a green card).

Senator Sanders (I-VT) recently won debate on a provision to increase the US worker training fee from $1,500 to $5,000 per H-1B petition.  This additional fee would be on top of the existing filing fee for an H-1B, and must be paid by the employer petitioner.  The funds would supposed to be used for US worker training and scholarship programs.  The current amount employers pay is $1,500, and the government has been questioned on whether or not the funds are effective in helping to train US workers. 

Among the most significant changes in the Senate's bill, S. 1348 would overhaul employment-based immigration system. The bill would replace the employer-sponsored preference categories (e.g., EB-1, EB-2, and EB-3) with a point-based merit system similar to ones in Canada and Australia.  The labor certification process for testing the US labor market would be eliminated altogether. Points would be awarded for professional and education-based qualifications, English language skills, family ties and other factors.  

The business community has expressed concerns about the sweeping changes to employment-based immigration, especially with regard to the impact the changes would have on the availability of visas for needed workers, and the ability of a strict point system to respond to the needs of the labor market.     

The Senate's bill is still at an early stage in the legislative process, and will face strong debate when the Senate resumes next week. It is expected that significant amendments will result from these debates over the coming weeks and months.

Please note that the Senate's bill is still only a proposal at this point; there has been no change to current law. 

We will provide further information as soon as it becomes available.

Goeschl & Reinhorn PLC's Business Immigration Alerts is an advertisement which provides a general description of the law; it is not intended to provide specific legal advice or to establish an attorney client relationship.

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