FEDERATION FOR AMERICAN IMMIGRATION REFORM

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Summary of S. 744—The Border Security, Economic Opportunity, and Immigration Modernization Act

On April 17, 2013, Senators Chuck Schumer, John McCain, Dick Durbin, Lindsey Graham, Bob

Menendez, Marco Rubio, Michael Bennet, and Jeff Flake introduced S.774, entitled the Border Security,

Economic Opportunity, and Immigration Modernization Act. If passed, S.744 would grant amnesty to the

approximately 12 million illegal aliens currently living in the U.S., create new guest worker programs for

agricultural workers and low-skilled workers, and significantly increase legal immigration.

Low-Skilled Workers

Today’s immigration system is dysfunctional because it is not responsive to the socioeconomic conditions

of the country. As a result, immigration contributes to an already-existing surplus of low-skilled workers,

increasing job competition and driving down wages and conditions to the detriment of American workers.

America’s massive low-skill labor force and illegal alien population allow employers to offer low pay and

deplorable conditions.

S. 744 amends Sec. 101(a)(15) of the Immigration and Nationality Act to create a new W nonimmigrant

visa program for low-skilled guest workers to perform services or labor for a registered employer in a

registered position. W nonimmigrants are permitted to bring their spouses and children.

The following summary covers the provisions in Title IV of the bill that would create this new W visa for non-agricultural “low-skilled” workers.

Low-Skilled Workers (W Visa) TITLE IV, SUBTITLE G—W NONIMMIGRANT VISA (NON-AGRICULTURAL WORKERS)

BUREAU OF IMMIGRATION AND LABOR MARKET RESEARCH (section 4701)

This section establishes the Bureau of Immigration and Labor Market Research (Bureau),

an “independent statistical agency” within U.S. Citizenship and Immigration Services

(USCIS). The Bureau is established with $20 million appropriated from the Treasury.

The Bureau is funded with the following fees:

o Registration fee (determined by the Secretary) per W worker in a registered position;

o Fees for each registered position that a business receives when the business

employs too few U.S. workers (see below); and

o Other fees the Secretary determines are necessary related to hiring W workers.

The Director of USCIS shall submit the Commission’s budget to Congress within 1 year

after enactment and the Comptroller General shall audit the proposed budget.

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The Commissioner of the Bureau is appointed by the President. The duties of the

Commissioner are limited to:

Create a formula to determine the annual change to the W visa cap and make that

decision annually;

Supplement the recruitment methods employers may use to attract W visa workers;

Create a formula to determine the shortage occupations in Zones 1-3 and publish those

occupations;

o Note: “Zone 1 Occupation” refers to an occupation that requires “little or no preparation” and

is classified as a zone 1 occupation on the Occupational Information Network Database

(O*NET) on the date of enactment (or similar database designated by the Secretary of

Labor). “Zone 2 Occupation” refers to an occupation that requires “some preparation” and is

classified as a zone 2 occupation on the Occupational Information Network Database

(O*NET) on the date of enactment (or similar database designated by the Secretary of

Labor). “Zone 3 Occupation” refers to an occupation that requires “medium preparation” and

is classified as a zone 3 occupation on the Occupational Information Network Database

(O*NET) on the date of enactment (or similar database designated by the Secretary of

Labor).

o Note: any employer in any industry may petition the Commissioner to designate a particular

occupation as a shortage occupation.

o At the Commissioner’s request, the Secretaries of Commerce, and Labor; Director of

Census Bureau; and the BLS Commissioner shall provide data, conduct surveys,

and assist in preparing recommendations of shortages in Zone 1-3 occupations.

Conduct a survey once every 3 months of unemployment rates of Zone 1-3 occupations

that are construction occupations in each metropolitan statistical area;

Report to Congress annually with recommendations on employment-based immigrant

and nonimmigrant visa programs; and

“Carry out any functions required to perform the duties” described above.

The employees of the Bureau are required to have expertise in identifying labor shortages

and make recommendations to the Commissioner on the impact of immigrant and

nonimmigrant aliens on the labor market.

NONIMMIGRANT CLASSIFICATION FOR W NONIMMIGRANTS (section 4702)

Creates the new W-1 nonimmigrant visa program to bring in guest workers to perform labor

for a registered nonagricultural employer.

Creates the new W-2 nonimmigrant visa for spouses and minor children of the W-1 guest

worker to accompany them during the period of the W-1 nonimmigrant’s admission.

ADMISSION OF W NONIMMIGRANT WORKERS (section 4703, INA 220)

W Nonimmigrant Eligibility

An alien is eligible if:

o Not inadmissible under S. 744;

o Passes a criminal background check;

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o Agrees to accept only registered positions in the U.S.; and

o Meets “other criteria” established by the Secretary.

Terms of the W Visa

A W nonimmigrant must report to his/her initial employment within 14 days of being

admitted into the U.S.

The W visa is valid for 3 years, with the ability to renew for unlimited additional 3-year

periods. Note: the W nonimmigrant does not need to leave the U.S. to reapply.

A W nonimmigrant who is unemployed for 60 consecutive days must depart if unable to

obtain employment.

A W nonimmigrant may travel outside the U.S. and be readmitted to the U.S., but such

travel shall not extend the period of authorized admission.

Registered Employer Qualifications

An employer must submit an application to the DHS Secretary to employ W workers.

Each application shall include:

o That the employer is a bona-fide employer (undefined);

o A tax ID number or employer ID number registered with IRS; and

o The number of W nonimmigrants the employer estimates it will request.

Employers must attest in the application:

o The number of employees of the employer;

o The occupation category for each registered position;

o Whether the occupation is a shortage occupation;

o The employer will pay at least the legally required wage;

o The W nonimmigrant working conditions won’t adversely affect the working

conditions of other workers;

o The employer has satisfied the required recruiting activities (see below);

o There is no U.S. worker who is ready, willing, and able to hire;

o There is not a strike, lockout, or work stoppage; and

o The employer has not laid off nor will lay off a U.S. worker within 90 days (unless

they can document a reason that a U.S. worker is not qualified or available).

If there is evidence of fraud, the Secretary may refer the application to USCIS for

“potential investigation.”

The Secretary shall approve compliant applications for a 3 year term and an employer

may renew its registered employer status for unlimited 3 year periods.

o The Secretary will provide registered employers with a permit that includes the

number and description of approved registered positions.

o Employers pay a fee at the time of initial application and any subsequent renewal in

an amount determined by the Secretary. Note: The fee should be a sufficient amount to

cover the costs of the registry of employers.

Employers must submit an annual report that demonstrates that it provided the wages

and working conditions required.

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Ineligible Employers

The Secretary may deny an employer’s application if the Secretary determines, after

notice and an opportunity for a hearing, that the employer has:

o Knowingly (1) misrepresented a material fact, (2) made a fraudulent statement, or (3)

failed to comply with the attestation;

o Failed to cooperate in the audit process;

o Has been convicted of a human trafficking offense; or

o Within 2 years, convicted of violating (1) provisions of the Fair Labor Standards Act

related to child labor, minimum wage, or overtime; or (2) the Occupational Safety and

Health Act.

An employer described above may be ineligible for a period determined by the Secretary

of not more than 3 years.

o An employer who has been convicted of crimes of peonage, slavery, and trafficking

in persons (77 of title 18, USC), or any human trafficking offense under State or

territorial law are permanently ineligible.

An employer cannot use W workers if the employer is not a small business and 30

percent or more of its employees are not U.S. workers.

Registered Positions

A registered position must be in an “eligible occupation” meaning a Zone 1-3 occupation

that does not require a college degree, as defined by the BLS, or is a computer

occupation (computer operation, programming, or repair).

o DHS will publish the eligible occupations as Zone 1-3 occupations on an “on-going

basis” on a publicly available website.

The Secretary shall approve a registered position for a period of 3 years.

o A position remains approved beyond 3 years if the employer files an LPR petition on

behalf of the W nonimmigrant employee.

o The extension of the registered period ends on the date:

The W nonimmigrant’s green card petition is denied or approved; or

When the employer terminates the employment of the W nonimmigrant.

A registered position begins on the date of approval and ends on the earlier of:

o Employer’s status as a registered employer is terminated;

o 3 years after the date of approval; or

o The employer terminates the position.

The Secretary must develop a registry of approved positions available on a DHS website

that is linked to each State workforce agency website.

o Each position must remain on the website for the duration of the registration term

and indicate whether or not the position is filled.

o If a W nonimmigrant’s employment ends, the registry must indicate that the position

is unfilled for 10 calendar days, unless filled by a U.S. worker.

Recruitment of U.S. workers

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Before hiring a W worker, an employer must advertise for at least 30 days, including

wage range, location and proposed start date on a DOL website and workforce agency

of the State where position is located (the 30 days requirement can be concurrent for

both posting locations).

The employer must also conduct at least 3 recruiting activities:

o Advertising at a job fair; employer’s external website; with local libraries, journals or

newspapers; on radio or television; or Sunday ads in primarily daily circulation

newspapers in the area.

o Presentations or posting at education or training sites; career day presentations at

local high schools or community organizations.

o Posting with a trade association.

o Utilizing a search firm.

o Advertising through recruitment programs at education or training sites.

o Seeking candidate through an employee referral program with incentives.

o Advertising, posting, or presentations with newspapers, internet sites, job fairs, or

community events targeted to constituencies designed to increase employee

diversity.

o Providing in-house training or third party training.

o Advertising through recruitment, educational, or other cooperative programs offered

by the employer and a local economic development authority.

o Any other recruitment activity determined to be appropriate by the Commissioner.

If a W nonimmigrant terminates employment or is terminated by an employer, an

employer may fill the vacancy by hiring:

o A U.S. worker; or

o After 10 calendar days:

A W-nonimmigrant; or

A certified alien. (if the position is a special allocation position)

Fees

Employers pay a registration fee (amount determined by the Secretary) at the time the

W visa worker begins employment.

o The fee shall be used to fund the W visa program.

Additional fee for small businesses:

o $1,750 per position if the employer, at the time of filing the application, is a small

business and more than 50 percent and less than 75 percent of the employees of the

registered employer are not U.S. workers.

o $3,500 per position if the employer, at the time of filing the application, is a small

business and more than 75 percent of the employees are not U.S. workers.

If the registered employer, at the time of filing the application, is not a small business

and more than 15 percent and less than 30 percent of employees are not U.S. workers,

then a $3,500 fee per position. Note: these additional fines are to be used to fund the Bureau.

A registered employer may not be required to pay any other fees not specified in S. 744

if the registered employer is a small business.

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W Visa Cap

The number of W visas issued per year is between 20,000 and 200,000.

o The number of W visas for the first four years are:

First year: 20,000;

Second year: 35,000;

Third year: 55,000;

Fourth year: 75,000.

o The number of W visas issued per year after the fourth year is determined by an

index that takes the following four factors into consideration:

The rate of change in the number of new job openings in the economy;

The inverse rate of change in the number of unemployed US workers;

The percentage change the Bureau recommends the annual ceiling should

increase or decrease; and

The percentage difference between the number of W visas requested in the prior

fiscal year compared to the ceiling in the prior fiscal year.

o No W visas are available in an MSA that has an unemployment rate more than 8.5%

in the most recent month preceding the date the application is submitted, unless:

The Commissioner has identified the eligible occupation as a shortage

occupation; or

The Secretary approves the registered position under the “special allocations”

provisions. (Additional positions are made available even if the unemployment rate is

more than 8.5 percent if certain recruiting activities are carried out and level 4 wages (as

defined by the Labor Department’s wage library) are paid.)

The “first year” begins on April 1, 2015 and ends on March 31, 2016, unless the

Secretary determines that the first year begins on October 1, 2015 and ends on

September 30, 2016.

In addition to the number of W visas made available for a year, the Secretary shall make

available an additional number of W visas for shortage occupations in a particular MSA.

Note: there is no cap as to the number of Visas made available by the Secretary for shortage

occupations.

Special Allocations of Registered Positions

In addition to W visas made available, including additional positions for shortage

occupations, the Secretary shall make additional W visas available for the year for a

specific registered employer if:

o The W visa cap for the year was met and none remain available for allocation; or

o A registered employer is located in an MSA with unemployment of 8.5 percent in the

most recent month before the date the application was submitted.

Recruitment of W nonimmigrants:

o An initial W nonimmigrant may only receive a special allocation W visa if the

employer carries out at least 7 of the recruiting activities described above.

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o An experienced W nonimmigrant may fill a special allocation W visa if the employer

carries out at least 3 of the recruiting activities described above.

Employers must post special allocation positions, including the wage range, location,

and initial date of employment for at least 30 days on the DOL website and with the

workforce agency of the relevant state. Note: the 30 day periods may occur at the same time.

Special allocation Wages:

o Initial W nonimmigrants must be paid at least Level 4 wages.

o Experienced W nonimmigrants must be paid at least the prevailing wage.

Reduction of future registered positions:

o W visas made available by special allocation for initial W nonimmigrants are reduced

from the following year’s cap (or the earliest possible year that a W visa is available).

o The special carve out of W visas for the Animal Production Subsectors (see below) is

not affected by any reduction of future visas. Note: the “Animal Production Subsectors”

includes major business interests in South Carolina (Sen. Lindsey Graham’s home state)

Allocation of Registered Positions

First 6-month period: 50 percent of the W visa cap for that year.

Second 6-month period: 50 percent of the W visa cap for that year.

W visas may only be allocated to shortage occupation positions for the first month of

each 6 month period. Note: this limit does not apply if the Commissioner has not identified any

shortage occupations.

For the second, third, and fourth months of each 6 month period, one-third of the number

of W visas allocated shall be distributed to small businesses.

o Any W visas not issued to small businesses during these months shall be available

for any registered employer during the last 2 months of each 6 month period.

Animal Production Subsectors: the Secretary shall make additional W visas available for

the Animal Production Subsectors up to 10 percent of that year’s W visa cap.

Limitation for Construction Occupations

o No more than 33 percent of W visas per year may be allocated to the construction

industry with a cap of 15,000 per year (or 7,500 for any 6 month period).

o Employers cannot hire a W worker for construction occupations in a MSA with at

least 8.5 percent unemployment rate in the corresponding occupational job zone.

The unemployment rate is determined by using the Bureau’s most recent survey

or, if no survey exists, a “recent and legitimate” private survey (undefined).

ADDITIONAL ASPECTS OF W-VISAS

Portability. A W nonimmigrant can terminate their employment for any reason and seek and

accept employment with another registered employer in any other registered position within

in the terms of the W visa.

Promotion. An employer may promote a W worker who has worked for that employer for at

least a year but the promotion does not increase the total number of registered positions

available to that employer.

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Prohibition on outplacement. An employer may not outsource a W worker with another

employer if more than 15 percent of the employees of the registered employer are W

nonimmigrants.

W NONIMMIGRANT PROTECTIONS

W nonimmigrants are protected under the same Federal, State, and local labor or

employment laws as U.S. workers in a similar position.

A W nonimmigrant may not be required to waive any substantive rights or protections

under S. 744.

A W nonimmigrant is prohibited from being treated as an independent contractor under any

Federal or State law, or treated like one by any person, including employer or labor

contractor. Independent contractors can, however, employ W nonimmigrants.

Employers are required to pay all fees related to hiring a W nonimmigrant. Note: employers

are not required to pay for the cost of round trip transportation or foreign passports.

Employers must comply with all Federal, State and local taxes with respect to W

nonimmigrant.

W nonimmigrant workers are entitled to Whistleblower Protection if they disclose information

that they reasonably believe demonstrates a violation of this Act or cooperate in an

investigation concerning compliance with the W Visa Program.

Enforcing Complaints

The Secretary shall establish a process for handling complaints by an aggrieved

applicant, employee, or nonimmigrant (or agent acting on behalf of these individuals)

regarding an employer’s failure to meet conditions of this section, or the displacement or

non-hiring of a U.S. worker as required by this section.

The Secretary shall issue regulations for handling complaints by an aggrieved W

nonimmigrant. The Secretary is required to conduct an investigation if there is

reasonable basis to believe that a violation occurred within 30 days of the complaint’s

filing. There is a statute of limitations on such complaints 6 months after the violation.

o Not later than 60 days after the Secretary makes a reasonable basis determination,

the Secretary must issue a notice to the interested parties and offer an opportunity

for a hearing on the complaint. The Secretary shall make a finding on the matter

within 60 days of the hearing.

o A complainant who prevails is entitled to reasonable attorney’s fees and costs. A

complainant who makes a frivolous complaint is liable for reasonable attorney’s fees

and costs of the accused person.

o The Secretary may bring an action in any court of “competent jurisdiction” to:

Seek remedial action, including injunctive relief;

Recover the damages described in this subsection and the “penalties”

subsection; and

Ensure compliance with terms and conditions of the Whistleblower Protections.

o This section also clarifies that the rights and remedies provided a W nonimmigrant in

this bill are in addition to any other contractual or statutory rights and remedies of

workers, and are not intended to alter those rights and remedies.

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Penalties

If the Secretary finds a violation of this Section, after a hearing, the Secretary may

impose administrative remedies and penalties including:

o Back wages;

o Benefits; and

o Civil monetary penalties.

Civil penalties per violation per affected worker:

o $2,000 fine maximum ($4,000 for each subsequent violation);

o $5,000 fine maximum for a willful violation; and

o $25,000 fine maximum for a willful violation and a U.S. worker is harmed.

o If the employer knowingly fails to materially comply with the terms of representations

made in petition, application, certification or attestation:

$4,000 fine maximum per aggrieved worker;

For a third offense, a $5,000 fine maximum per affected worker and designation

as an ineligible employer, recruiter, or broker.

Criminal penalties. Misrepresenting the numbers of full-time equivalent employees of an

employer or the number of employees of a person who are U.S. workers for the purpose

of reducing fees under subsection (e)(6) or avoiding limitations under subsection (e)(7):

o $25,000 fine maximum;

o 1 year imprisonment maximum; or

o Both.

Monitoring

The Secretary is required to monitor the movement of W nonimmigrants through:

o The Employment Verification System described in sec. 274A(d); and

o A new electronic monitoring system modeled on SEVIS I and SEVIS II. Note: SEVIS

refers to the Student and Exchange Visitor Information System, an internet-based system to

store and monitor information about student visa holders, schools, and exchange programs.

This system must require employers to update the system when W

nonimmigrants start and end employment.

This system must interact with the registry (see above) to ensure the Secretary

designates and updates positions as being filled or unfilled.