This is not for hi-tech jobs at all!
Don't want to spoil everyone's zest and still would like to continue or fight. Although I have grim hopes for adding H1B into this bill. This bill says H5-A = workers doing job for which there is unavailable/unwilling Americans and H5-B = undocumented workers on May 12. You and I ain't undocumented on this day. I wish I was...
Immigration Reform Bill Introduced on May 12, 2005
On May 12, 2005, a potentially significant bill was introduced in Congress that is intended to lead to comprehensive border security and immigration reform. Called "The Secure America and Orderly Immigration Act of 2005," the bill (S. 1003) was introduced in the Senate by Senators Edward Kennedy (D-MA) and John McCain (R-AZ), the two original sponsors, and joined by Senators Sam Brownback (R-KZ) and Joseph Lieberman (D-CT). Representatives James Kolbe (R-AZ), Jeff Flake (R-AZ) and Luis Gutierrez (D-IL) introduced a companion bill (H.R. 2330) in the House of Representatives. If enacted, the legislation would represent the greatest overhaul of our nation's immigration system in the last 20 years.
The highlight of the bill is the creation of two new nonimmigrant visa categories, the H-5A and H-5B visas, for temporary workers who wish to perform jobs which American workers are generally unavailable or unwilling to take.The bill also directs the creation of a new electronic, internet-based database and employment authorization verification system that would eventually replace the existing I-9 process and verification database. Moreover, the bill addresses some global and systemic issues such as the creation of additional immigrant visa numbers, international cooperation on circular migration, border security, and assistance to state and local governments for immigration enforcement related expenses. Finally, the bill sets forth labor protection and healthcare standards for foreign guest workers, and imposes restrictions on recruiting methods and legal representation.
Essential Worker Visa Program (H-5A Visa)
This provision would create a new temporary visa, the H-5A visa, for foreign workers seeking to enter the United States in order to fill available jobs, generally regarded as non-professional, for which there are no qualified and available U.S. workers, and who would not qualify for existing nonimmigrant visas such as the H, L, O, P or R visa categories. Applicants would have to show that they have a job offer, pay a fee of $500 in addition to the normal application fees, and clear certain security, medical and other background checks. Sponsoring employers would have to attest that they posted a job order for at least 30 days with America's Job Bank in order to recruit U.S. workers, that they are offering the same wages, benefits and working conditions to foreign workers as would be offered to U.S. workers, and would be required to maintain documentation for at least one year on their reasons for rejecting any U.S. workers.
The initial annual cap on H-5A visas would be set at 400,000, but the annual limit would be gradually adjusted up or down based on demand in subsequent years. The visa would be valid for an initial period of three years, and could be extended for an additional period of three years, for a total period of stay of no more than six years. At the end of the six-year period of stay, the foreign national would need to leave the United States, unless he or she has a labor certification application or immigrant visa petition pending.
The H-5A visa would be portable, meaning that once a foreign national is in the United States in valid H-5A status, he or she would be able to change employers. However, workers who lose their jobs must find a new one within 45 days, or return to their country of nationality or last residence.
An employer could sponsor an H-5A worker for permanent residence by filing a labor certification application on the worker's behalf. An H-5A worker could also apply for adjustment of status to permanent residence without an employer's sponsorship, so long as he or she had maintained H-5A nonimmigrant status in the United States for a cumulative total of four years.
Legalization of Certain Undocumented Workers (H-5B Visa)
The legislation would also create a new H-5B nonimmigrant visa category for undocumented aliens who were present in the United States on the date the Act was introduced (i.e., on May 12, 2005) and have been continuously present in the United States since that date, but whose presence in the United States is undocumented. Applicants for H-5B visas, however, must demonstrate that they were employed in the United States before the Act was introduced and continue to be employed. Applicants would also be required to pay a $1,000 fine.
As evidence of continuous employment, an H-5B applicant could submit records kept by his or her employer. An employer who had unlawfully employed an undocumented worker prior to May 12, 2005 would be shielded from tax and other criminal liabilities that could result from producing documentation in support of a worker's visa application. However, there is no general amnesty for employers who may have violated other labor or employment laws.
Applicants for H-5B status would be granted work and travel authorization while their applications are pending, as would their spouses and children. The authorized period of stay for an H-5B nonimmigrant would be six years. H-5B nonimmigrants would be eligible to adjust their status to permanent residence, but would be subject to special requirements, including meeting certain employment and education requirements; payment of substantial fines and application fees; payment of back taxes; and satisfying minimum English language and civics requirements.
The bill's temporary worker provisions are similar to the plan President Bush has promised to introduce. However, overall this bill goes further than the president's plan because it provides a pathway to permanent residence, and ultimately U.S. citizenship, for guest workers who fill jobs that U.S. workers are unwilling or unable to fill, both those newly entering the United States and those who have been in the United States in undocumented status (so long as they meet certain requirements).
Family Unity and Backlog Reduction
The bill proposes to exempt immediate relatives of U.S. citizens from the 480,000 annual cap on family-based immigrants (thereby providing additional immigrant visas to the family-based immigrant categories) and to increase the worldwide numerical limit on employment-based immigrants from 140,000 to 290,000 per year. In addition, the overall employment-based limit would include any unused employment-based (EB) visas from the previous fiscal year, adding to that sum any unused EB visas going back to FY 2001 and continuing each year in the future. The bill also makes all unused immigrant visas from the first four employment-based preference categories available to a new EB-5 category for "other workers." The bill would also change the per country limits for both family-based and employment-based immigrants.
Overall, the bill would increase the annual cap for the EB-1 (priority worker) and EB-2 (exceptional ability or advanced degree) categories from 40,000 to 58,000. The EB-3 category would be limited to skilled and professional workers, and the annual cap would be increased from 40,000 to 101,500. The EB-4 category (currently reserved for special immigrants, including certain religious workers) would be reassigned to immigrant investors, and the annual cap would be increased from 10,000 to 14,500. Finally, the annual cap for the EB-5 category (to be reassigned, as discussed above, to "other workers") would be increased from 5,000 to 87,000. Special immigrants would still be allocated 10,000 immigrant visas per year, but would be outside the normal worldwide cap.
Worker Protection and Fraud Prevention
The bill contains provisions that are intended as safeguards against worker exploitation, and against non-lawyers who seek to take advantage of, and provide inadequate legal representation to, prospective guest workers. One provision would require overseas recruiters to register with the Department of Labor, and would require all recruiters to be certified. The bill further requires recruiters to disclose key issues such as working conditions and remuneration, and directs the Department of Labor to promulgate rules on investigating and adjudicating complaints by aggrieved laborers.
The bill also provides that only an attorney or an otherwise approved representative may file an application on behalf of an intending H-5 worker. This may preclude many corporate human resource offices from continuing their practice of filing immigration papers on behalf of their nonimmigrant workers.
Enforcement and Border Security
If implemented, the law would gradually phase in a new electronic work authorization verification system and database to replace the current, paper-based I-9 system, which is widely perceived to be prone to fraud. The system would be compatible with the security features of the H-5 visa, would be based on a machine-readable technology and would check social security records. There is no discussion in the bill regarding who would bear the cost of setting up the technology required by U.S. employers to implement this new system.
All immigration-related documents issued by the U.S. government would include biometric data (such as electronic fingerscans and digital photographs), and the US-VISIT border entry system would be upgraded to require biometric data of travelers seeking to enter the United States. The Department of Labor would be granted authority to conduct random audits of employers to ensure compliance with labor and immigration laws.
