Section by Section Summary of the Border Security, Economic Opportunity

and Immigration Modernization Act

By Greg Siskind

Siskind Susser, PC – Immigration Lawyers

gsiskind@visalaw.com

901-682-6455

www.visalaw.com

Section by Section Summary of the Border Security, Economic Opportunity and Immigration Modernization Act – Title I – Border Security

By Greg Siskind – Siskind Susser, PC – Immigration Lawyers (gsiskind@visalaw.com)

Preliminary Sections

Section 1. Short Title; Table of Contents

The bill is called Border Security, Economic Opportunity and Immigration Modernization Act.

Section 2. Statement of Congressional Findings.

States that Congress recognizes that the bill is intended to protect American sovereignty and establish a coherent and just system for integrating those who seek to join American society.

Section 3. Effectiveness Date Triggers.

Defines terms including

- Commission – the Southern Border Security Commission - Comprehensive Southern Border Security Strategy – the strategy set by DHS to achieve and

maintain an effectiveness rate of 90% or higher in all high risk border sectors. - Effective control – persistent surveillance and an effectiveness rate of 90%+ - Effectiveness Rate – for a border sector, the percentage calculated by dividing the number of

apprehensions and turn backs by the total number of illegal entries in a fiscal year. - High Risk Border Sector – a border sector in which more than 30,000 people were apprended in

the most recent fiscal year. - Southern border – the US-Mexico border - Southern Border Finance Strategy – strategy set by DHS to identify where fencing should be

deployed.

Triggers

1. No processing of RPI applications until DHS has submitted to Congress the Notice of Commencement of implementation of the Comprehensive Southern Border Security Strategy and the Southern Border Fencing Strategy under Section 5 of this bill.

2. No adjustment of status of RPI immigrants may commence (except AgJobs and DREAM Act beneficiaries) until DHS, after consulting with the Comptroller General of the United States, submits to the President and Congress a written certification that

a. The Comprehensive Southern Security Strategy has been submitted to Congress and is substantially deployed and substantially operational;

b. The Southern Border Fencing Strategy has been submitted to Congress, implemented and substantially completed

c. DHS has rolled out E-Verify to all employers d. The exit system at air and sea ports of entry is operational.

Adjustments may be permitted if litigation prevents any of these conditions from being met, the implementation of the triggers is found unconstitutional by the Supreme Court or ten years have elapsed since the date of enactment of the bill. Note that the new merit-based points categories don’t allow for applications by RPI beneficiaries until after ten years.

The DHS Secretary is authorized to waive all legal requirements to ensure the requirements are met.

Limits review of this bill to US district courts and only constitutional aspects of the bill can be challenged. DHS actions must be challenged within 60 days after the date of the contested action or decision. Only the Supreme Court can review such a decision.

Section 4. Southern Border Security Commission.

If effective control of the border is not achieved in five years, a Southern Border Security Commission will be set up. It will be comprised of two members appointed by the President, two by the President pro tempore of the Senate (one from each party), two by the Speaker of the House (one from each party), four members who are either the governor (or an appointee of the governor) of the four border states.

The Commission shall make recommendations to the President, DHS and Congress on policies to achieve the border security goals in the triggers. Within six months, the Commission has to submit its report.

Section 5. Comprehensive Southern Border Security Strategy and Southern Border Fencing Strategy.

Within 180 days of passage of the bill, DHS shall prepare a strategy called the Comprehensive Southern Border Security Strategy for maintaining effective control between the ports of entry in all high risk border sectors along the Southern border.

The strategy shall explain how the enforcement goals outlined above will be met. DHS will report semi-annually on the implementation of the strategy.

A Southern Border Fencing Strategy must be established within 180 days of passage of the bill. The strategy will describe where fencing , infrastructure and technology should be deployed on the border.

Section 6. Comprehensive Immigration Reform Trust Fund.

$6.5 billion will be transferred to a new Treasury Department fund to finance the implementation of this law. $100,000,000 will be appropriated for start up costs. Fees from various parts of the bill’s new programs will go in to this fund.

$3 billion will go to implementing the Comprehensive Southern Border Security Strategy.

$2 billion will go to activities called for by the Commission described in Section 4.

$1.5 billion will go for fencing.

Section 7. Reference to the Immigration and Nationality Act.

Unless otherwise, noted, references to amendments in this bill pertain to the Immigration and Nationality Act, Secretary means the DHS Secretary and Department means DHS.

TITLE I – Border Security

Section 1101. Definitions.

The following terms are defined:

- Rural, high-trafficked areas (rural areas that provide smuggling routes) - Southern border (full border between US and Mexico) - Southwest border region (area in US within 100 miles of the Southern border)

Section 1102. Additional US Customs and Border Protection Officers.

By September 30, 2017, DHS will hire and train 3,500 new CBP officers.

Section 1103. National Guard Support to Secure The Southern Border.

A state governor, with DOD approval, can order a state’s National Guard to the border to assist CBP to perform operations as may be needed to secure the Southern border including constructing fencing, increasing mobile surveillance systems, deploying drones, deploying radio communications, constructing checkpoints, and providing assistance to CBP in rural, high-trafficked areas.

Section 1104. Enhancements of Existing Border Security Operations.

CBP shall increase the number of border crossing prosecutions in the Tucson Sector to up to 210 prosecutions per day. CBP shall reimburse state and local law enforcement agencies for any detention costs related to this expansion. Additional judges will be appointed to handle the additional cases. $50 million is provided for this project.

FEMA shall enhance readiness on the borders through Operation Stonegarden.

DHS shall construct additional Border Patrol stations in the Southwest Border region needed to provide full operational support in rural, high-trafficked areas.

DHS shall enhance security of the Southwest Border region by adding permanent bases for the Border Patrol, upgrading existing bases, and ensuring that bases stop individuals from entering the US after crossing the Southern border.

Section 1105. Border Security on Certain Federal Land.

To achieve effective control of Federal lands, DHS shall authorize CBP personnel with immediate access to Federal lands for security activities including patrols and deploying equipment. DHS may provide training on the “natural and cultural resources” on the Federal land. DHS must prepare an environmental impact statement but that may not result in a delay in the activities required under this section. But plans can be altered based on the statement. This section doesn’t apply to private or state land.

Section 1106. Equipment and Technology.

CBP shall deploy additional surveillance systems and drones in the Southwest Boarder region in order to have 24 hour coverage.

CBP shall deploy new unarmed aircraft and helicopters along the Southern border as well as horse patrols.

Section 1107. Access to Emergency Personnel.

DHS will set up a two year grant program to improve emergency communications in the Southwest Border region. This grant will allow individuals to purchase cell phones at his or her residence in order to contact law enforcement to report illegal activities.

Funds are to be appropriated for five years to help state and local law enforcement agents purchase P25-compliant radios in order to facilitate communication with Federal authorities.

Section 1108. Southwest Border Region Prosecution Initiative.

Provides for DOJ to reimburse state and local authorities for costs associated with prosecuting criminal cases declined by local offices of US Attorneys.

Section 1109. Interagency Collaboration.

DOD will collaborate with DHS to identify technology used by DOD that could be used by CBP to improve security of the Southern border.

Section 1110. SCAAP Reauthorization.

Reauthorizes the State Criminal Alien Assistance Program through 2015.

Section 1111. Use of Force.

Within 180 days after enactment, DHS shall issue policies governing the use of force by all DHS personnel that require reporting establish procedures for dealing with complaints about force.

Section 1112. Training for Border Security and Immigration Enforcement Officers.

DHS shall ensure CBP, Border Patrol, ICE and agriculture agents within 100 miles of the Southern border or at any port of entry receive appropriate training in dealing with fraudulent travel documents; civil, constitutional, human and privacy rights; the scope of enforcement authorities; the use of force policies in Section 1111; immigration law; social and cultural sensitivity toward border communities; the impact of border operations on communities; and environmental concerns.

Section 1113. Department of Homeland Security Border Oversight Task Force.

DHS will set up an independent task force to make recommendations regarding immigration and border enforcement strategies to consider the impact on border communities. The task force should also make recommendations on improving collaboration with the communities and evaluate

how agencies can protect the rights of border residents. The task force will be comprised of local officials, advocates, community members and Border Patrol representatives.

Section 1114. Immigration Ombudsman.

The CIS Ombudsman’s duties will be expanded to cover CBP and ICE as well as USCIS.

Section 1115. Reports.

DHS will submit to Congress a report detailing the effectiveness rate for each Border Patrol sector along the Northern and Southern borders, the number of miles under persistent surveillance, the monthly wait times per passenger to cross the Southern border and the allocations at each port of entry on the Southern border.

Section 1116. Severability.

If a court rules any part of this bill is unconstitutional, the remainder of the law will not be affected.

Section by Section Summary of the Border Security, Economic Opportunity and Immigration Modernization Act – The Registered Provisional Immigrants and DREAM Sections

By Greg Siskind – Siskind Susser, PC – Immigration Lawyers (gsiskind@visalaw.com)

TITLE II – Immigrant Visas

Subtitle A – Registration and Adjustment of Registered Provisional Immigrants

Section 2101. Registered Provisional Immigrant Status.

Creates a new Section 245B of the Immigration and Nationality Act.

Section 245B(a) - After conducting national security and law enforcement clearances, DHS may grant “registered provisional immigrant status” to an alien who has paid the required fee and penalty, who meets the eligibility requirements and submits an application in a timely manner (stated later).

The requirements –

1. Physical presence. - Been physically present in US on the date application for RPI submitted - Been physically present in the US on or before 12/31/2011 - Maintained continuous physical presence in the US from 12/31/2011 until the date the

person is granted RPI status - Absences after 12/31/2011 okay if the absences are “brief, casual and innocent”

2. Grounds for ineligibility a. Convictions for felonies in the convicting jurisdiction (other than state/local convictions

for which a key element was the alien’s immigration status) b. Aggravated felonies (as defined in the INA) c. 3 or more misdemeanor offenses for acts on 3 or more different dates (other than

minor traffic offenses or state/local offenses for which immigration status was a key element)

d. Any offense under foreign law except for purely political offenses which, if committed in the US, would render the person inadmissible.

e. Unlawful voting f. Any other grounds of inadmissibility except the public charge, labor certification, and

immigration violations (excluding those arrested for illegal reentries) g. Failure to attend a removal proceeding is not a ground of ineligibility unless the date on

which the person failed to appear is after the date of enactment of the bill h. Terrorist threats i. People legally in the US including green card holders, asylee/refugees and

nonimmigrants. j. Waivers permitted for humanitarian purposes, to ensure family unity, or if such a waiver

is otherwise in the public interest. But not available for many convicted criminal aliens,

persecutors, human traffickers and money launderers. Also not available for those inadmissible on security grounds, polygamy, child abductors, unlawful voters and former citizens who renounced citizenship to avoid taxation. Also, no waivers for people who make misrepresentations on their RPI applications.

k. Convictions don’t include expungements, set asides, or their equivalent. 3. People found to have previously submitted a frivolous asylum application are not barred from

RPI status. Also, failing to abide by a voluntary departure order in order to take advantage of RPI is okay.

4. Spouses and children can qualify as RPI dependents if the spouses or child is physically present in the US on the day the principle’s RPI status is granted and also present on 12/31/2012. They have to also meet the rest of the RPI requirements except the RPI’s physical presence requirement. Divorce or death can be dealt with by reapplying for RPI even if the physical presence tests for an RPI cannot be met. Same for a spouse or parent’s RPI status being terminated or revoked.

Application process.

1. Applicants apply by submitting an application during the application period. DHS will accept applications for one year beginning on the date they publish rules in the Federal Register. DHS can extend that period for up to 18 more months.

2. All back taxes must be paid before an application can be filed. Applicants can demonstrate compliance by submitting documents determined by the Treasury Department

3. DHS will provide a single application process for aliens, their spouses and their children. 4. Interviews may be required.

For aliens apprehended before or during the application period who appear “prima facie” eligible for RPI status, DHS shall provide the person a reasonable opportunity to file an application during the application period and may not remove the person until a final administrative determination is made on the RPI application. Eligibility for RPI status after departure. People who departed subject to an order of exclusion, deportation or removal who are outside the US or who reentered after 12/31/2011 without receiving DHS’s consent to reapply for admission are not eligible to apply for RPI status. DHS may waive this bar, however, if the person is the spouse or child of a US citizen or green card holder or is the parent of a child who is a citizen or permanent resident and the person can meet the physical presence requirements. Also, the waiver is available if the person is outside the US, was 16 or older on the date on which the alien applied for RPI status and was present in the US for at least three years during the six year period immediately prior to enactment of the new law. Suspension of Removal During Application Period. An RPI may not be detained or removed unless DHS finds that the person is or has become ineligible for RPI status or the status has been revoked.

Beginning on the date of enactment, if DHS determines that a person is in removal, deportation, or exclusion proceedings before an immigration judge and is prima facie eligible for RPI, DHS will give the person an opportunity to file for RPI status and upon a joint motion by DHS and the alien, the judge shall Terminate proceedings and give the person a chance to apply for RPI status. If EOIR discovers a person in proceedings is eligible, they shall notify DHS and if DHS doesn’t dispute within 7 days after notification, EOIR, upon consent of the alien, shall terminate proceedings and allow the person to apply for RPI status. If a person is otherwise eligible for RPI status and has been order excluded, deported or removed or ordered to depart voluntarily, the person may apply for RPI status and if the application is granted, the person may file a motion to reopen the order and the motion will be granted unless the person is otherwise ineligible. From the point where a person files for RPI status and the date DHS makes a decision, the person may receive advance parole status to reenter the US if “urgent humanitarian circumstances” compel travel. The person may not be removed during that period unless DHS makes a prima facie determination that the person is ineligible for RPI status. A pending RPI applicant shall not be considered unlawfully present and not considered an unauthorized alien. RPIs and RPI applicants granted advance parole are not barred from readmission. DJS will provide applicants for RPI status with a receipt as soon as practical after filing. Employers who learn an employee has filed for RPI status or will apply for RPI status once the application period opens is not in violation of IRCA if the employer continues to employer the person during the pending period. Security and Law Enforcement Clearances. DHS may not grant RPI status unless the applicant submits biometric and biographic data in accordance with procedures set by DHS. The data will be used to conduct a background check. That check must be completed before RPI status will be granted. The initial period of RPI status will be six years unless revoked before that. Additional six year extensions are permitted if the person remains eligible for RPI status. RPI status may not be extended unless the person during the period of RPI status the person was regularly employed as an RPI and has no unemployment periods greater than 60 days or is likely to become a public charge or the person can show income or resources of at least 100% of the Federal poverty level throughout the period of admission. Applicants may not be granted extensions of RPI status unless they have paid taxes during the RPI period.

People over 16 applying for RPI status or an extension of RPI status shall pay a fee to DHS. A maximum fee per family may be established. Certain classes of individuals may be exempted from the fees. A penalty of $1000 shall also be assessed on applicants over the age of 21. $500 will be due at the time of the initial application and the remaining $500 shall be paid in periodic installments that shall be completed before an extension is granted. An application will be denied if the person fails to submit requested initial evidence (including biometrics) or any requested additional evidence by the date DHS determines. Denied applicants can file an amended petition if the initial application was filed during the application period and contained all the required information and fees that were missing from the initial application. DHS will provide an RPI document to each approved applicant. The document will be machine-readable and tamper resistant and have a digitized photograph. The card will be valid for travel and employment. The card will be valid for up to three years. Unless DHS determines that a DACA recipient has engaged in conduct making the person ineligible for RPI status, DHS may grant RPI status after new background clearances are conducted. RPI recipients are authorized to work and travel without having to obtain a visa if the person has an unexpired RPI document (described above) or a temporary travel document issued to the RPI if the RPI card was lost, stolen or destroyed. RPI’s may not leave for more than 180 days unless the failure to return within 180 days was due to extenuating circumstances beyond the person’s control. People granted RPI status shall be considered to have been admitted and lawfully present in the US in such status as of the date the application was filed. A person granted RPI is lawfully admitted to the US and may not be classified as a non-immigrant as an alien who has been lawfully admitted for permanent resident. DHS may revoke the status of an RPI at any time after providing notice to the person after all applicable review procedures have been conducted if the person no longer is eligible for RPI status, knowingly used RPI documentation unlawfully or fraudulently, or was absent from the US for more than 180 days (with an extenuating circumstances exception). DHS may request additional evidence or an interview before revoking. RPIs are not eligible for means-tested public benefits and various Obamacare benefits. SSA shall set up a system to allow for the assignment of Social Security numbers and issue SS cards to each person granted RPI status. DHS shall broadly disseminate in various languages information on RPI status.

RPIs are eligible to enlist in the Armed Forces. Section 2102. Adjustment of Status of Registered Provisional Immigrants. A new INA Section 245C is granted relating to the adjustment of status of RPIs. DHS may adjust an RPI to permanent residency if the requirements of this section are met.

1. RPI status was granted. 2. The applicant proves that he or she was not continuously absent from the US for more than 180

days (with an extenuating circumstances exception). 3. None of the grounds of inadmissibility applicable to RPIs is applicable. 4. If DHS is in the process of revoking the RPI status, DHS may not approve adjustment. 5. No taxes are owing. 6. The applicant was regularly employed throughout the RPI period. The 60 day, public charge or

average income exceptions noted above apply here as well. The applicant is responsible for providing evidence of employment and SS, IRS and local/state tax records. Additional records like bank records, business records, employer records, union records, affidavits and school records may be submitted. DHS may designate additional documents that can be submitted. Employment can be with multiple employers.

7. Full-time attendance at a high school, university, education, literacy or career training program or GED program can substitute for employment.

8. Exceptions to the employment/education requirement available based on being under 21 on the date the first extension or RPI status is submitted, being over 60 when the adjustment application is filed, or over 65 when the adjustment is approved or the person has a physical or mental disability or was pregnant. Dependents are also not subject to the requirement. There is an exception as well for people on medical leave, maternity leave, or other leave authorized by law or was the primary caretaker of a child or person who requires supervision or is unable to care for himself or herself or was unable to work due to circumstances outside the applicant’s control. Finally, there is a general waiver available for those who can show an extreme hardship to himself or a spouse, parent or child who is a US citizen or permanent resident.

9. Applicants must meet the English requirements contained in Section 312 of the naturalization rules of the INA or is enrolled in an acceptable English instructional program. Satisfying the Section 312 requirement for adjustment purposes will cover the person when they apply for naturalization. An exception is available if a person is unable to comply because of a physical or developmental disability or mental impairment. DHS may waive the requirement for those over 70 years of age when the application is filed.

10. Applicants must submit proof of having registered for Selective Service (if required). 11. Applications may not be approved until after DHS certifies that immigrant visas filed under the

family and employment categories before the enactment of the bill have been approved. 12. DHS may interview RPI-based adjustment applicants.

13. No RPI may adjust until new background checks are cleared. 14. Fees may be charged (not clear if they would be different than other adjustment applicants). A

maximum fee per family may be established and exempt individuals in defined classes. 15. Applicants over 21 on the date the bill was introduced in the Senate (4/17/2013) shall pay a

$1000 penalty. The fee may be paid in installments in a process established by DHS. 16. APPLICANTS MAY ONLY ADJUST UNDER SECTION 2302 OF THE BILL.

Naturalization

Three year post-green card residency requirement for people lawfully present in the US and eligible for work authorization for not less than ten years before becoming a lawful permanent resident. Must have been in US for at least 50% of the three year period and 90 days in the state.

This seemingly benefits all long term residents including people waiting a long time for green cards because of backlogs.

Section 2103. The DREAM Act. Adds a new Section 245D to the INA to cover DREAMers. Definitions are included for the following terms

- Institution of Higher Education – based on the Higher Education Act of ‘65 - Secretary - DHS Secretary - Uniformed Services – Based on Section 101(a)(5) of Title 10 of the US Code

DHS may adjust status of RPIs to green cards if

- The person has been an RPI for at least 5 years - Was younger than 16 on the date the person entered the US - Earned a high school diploma or obtained a GED certificate in the US - Has acquired a degree from an institution of higher education or has completed at least 2

years, in good standing, in a program for a bachelor’s degree or higher degree in the US or has served in the Uniformed Services for at least 4 years and, if discharged, received an honorable discharge

- Has provided a list of each secondary school that the applicant has attended in the US DHS may adjust people not meeting the higher education/Uniformed Services requirement if the applicant can demonstrate “compelling circumstances”. Must meet English requirements applicable in naturalization cases unless the person has physical or developmental disabilities or mental impairment.

Must submit biometric and biographic data and complete a background check. DHS may develop streamlined procedures for DACA recipients. DREAMers will be considered the same as permanent residents during their RPI period for purposes of qualifying for naturalization. So they should be able to file for naturalization as soon as they receive their green cards. NO GREEN CARD CAPS FOR ANY RPI-BASED GREEN CARD APPLICANTS (EITHER DREAM (245D) OR REGULAR (245C)). Repeals the IIRAIRA section limiting states from granting in state tuition to out of status immigrants. That repeal is retroactive to the date of the original IIRAIRA enactment date. Section 2104. Additional Requirements. Adds a new Section 245E to the Immigration and Nationality Act. Adds privacy protections for information provided as part of an RPI or related adjustment application. DHS can share information with law enforcement, intelligence and national security agencies as well as agencies with DHS if part of a criminal or national security investigation or prosecution or to a coroner. Employers are insulated from liability for past employment of someone without status if they provide employment records necessary for someone to meet the RPI requirements. The protection does not apply if the employment records are deemed to be fraudulent. An appeals process will be available for 245B, 245C and 245D applicants. Only one appeal may be filed per application. Unlawful presence will not accumulate during an appeal period. Cases may be appealed to a US District Court. Section 2105. Criminal Penalty Persons who misuse information provided in an RPI application are subject to a $10,000 penalty. Section 2106. Grant Programs to Assist Eligible Applicants. USCIS will set up a program to award grants to public and private nonprofit organizations to assist RPI and related adjustment applicants. Up to $50,000,000 will be available for this grant program.

Section 2107. Conforming Amendments to the Social Security Act. RPI and related green card recipients may correct their Social Security records. Also states that a “compelling reason” for a state not to file a petition to terminate parental rights is the removal of a parent from the US or the involvement of the parent in an immigration proceeding unless the parent is unfit or unwilling to be a parent to the child. States should consider giving preference to an adult relative over a nonrelated caregiver when a parent is removed from the country and should coordinate with DHS to ensure that parents who wish for their child to accompany them are given adequate time and assistance to obtain a passport and visa and to collect all vital records such as birth certificate, health and educational records and other information. Section 2108. Government Contracting and Acquisition of Real Property Interest. Gives DHS broad authority to hire the necessary personnel and acquire the necessary real estate to meet the requirements of this section. Section 2109. Long-Term Legal Residents of the Commonwealth of the Northern Mariana Islands Creates a new CNMI-only green card category for long term residents of the Commonwealth. Section 2110. Rulemaking Within a year of enactment of the bill, DHS, DOJ and DOS shall issue interim final regulations to implement this section of the bill which will take effect immediately upon publication in the Federal Register.

Section by Section Summary of the Border Security, Economic Opportunity and Immigration Modernization Act – Title II, part 3 – AgJobs

By Greg Siskind – Siskind Susser, PC – Immigration Lawyers (gsiskind@visalaw.com)

SUBTITLE B – Agricultural Worker Program

Section 2201. Short Title

The bill incorporates the Agricultural Worker Program Act of 2013.

Section 2202. Definitions.

The following terms are defined:

- Blue Card Status – those temporarily admitted under this program

- Agricultural Employment - refers to def. in the Migrant and Seasonal Agricultural Worker Protection Act (29 USC 1802) and includes farming, raising of livestock, bees, fur-bearing animals, or poultry and any practices (including forestry or lumbering) performed by a farmer or on a farm.

- Child – Same as INA’s definition of child

- Employer – includes employers, farm labor contractors and any agricultural associations that employs workers in agricultural employment.

- Qualified Designated Entity – qualified farm labor organizations designated by DHS and any other organizations DHS designates

- Work Day – Any day someone is employed 5.75 hours or more in agricultural employment

Chapter 1 – Program for Earned Status Adjustment of Agricultural Workers

Subchapter A – Blue Card Status

Section 2211. Requirements for Blue Card Status.

USCIS, after conducting appropriate background checks, may grant blue card status to

- anyone who performed agricultural employment in the US for not fewer than 575 hours or 100 work days during the 2 year period ending on 12/31/2012.

- Spouses and children of such workers

- Submits an application in time (described below)

- Is not ineligible for any of the grounds applicable to people in the legalization program described in the new INA Section245B for RPIs.

Application

Blue card applicants and qualifying dependents will file an application during the one year period beginning on the day USCIS publishes regulations in the Federal Register. USCIS has discretion to extend the period for 18 more months.

A single application may be submitted for a family.

Interviews may be required.

Like the legalization beneficiaries, people apprehended before or during the application period will be given an opportunity to apply if they appear eligible for the program. Blue card holders may not be detained unless DHS determines the person has become ineligible or blue card status has been revoked. People in removal proceedings can get out of them if they appear eligible for blue cards.

During the application period, blue card holders may be eligible for advance parole, but only for “urgent humanitarian circumstances.” Blue card applicants are not considered unlawfully present during the application period and are not considered unauthorized aliens for IRCA purposes (i.e. they can work legally).

Applicants will be given a filing receipt.

Employers who know their employees are applying for blue cards are not in violation of IRCA if the employer continues to employ the employee.

Departure from the US for people ordered deported but who are eligible for blue cards will not render the person ineligible if they have advance parole or a blue card.

Applicants must provide biometrics and go through background clearances.

Duration of status and extension.

Blue cards status will only go out eight years from the date rules are published. Extensions are only permitted unless the applicant passes a new background clearance.

Applicants over 16 will pay a processing fee. A maximum fee for a whole family may be instituted.

Applications may be denied if the applicants fail to submit requested initial evidence or fail to respond in a timely manner to a request for additional evidence. But an amended application may be submitted with the missing items.

Blue card recipients will receive a machine-readable, tamper resistant document with a tamper-resistant document valid for the period of admission. It serves as a work/travel document.

Blue card holders may not leave for more than 180 days unless the failure to return within 180 days was due to extenuating circumstances beyond the person’s control.

DHS may revoke the status of a blue card holder at any time after providing notice to the person after all applicable review procedures have been conducted if the person no longer is eligible for blue card status, knowingly used RPI documentation unlawfully or fraudulently, or was absent from the US for more than 180 days (with an extenuating circumstances exception). DHS may request additional evidence or an interview before revoking. Blue card holders are not eligible for means-tested public benefits and various Obamacare benefits. Blue card holders can convert to RPI status if DHS determines they cannot meet the work requirements applicable to blue card holders. Blue card employers must provide a written report annually on their employment of the blue card holder. A $500 penalty is due if an employer fails to report. DHS must issue a rule within a year of the date of enactment for issuing blue cards. Section 2212. Adjustment to Permanent Resident Status. After five years DHS may adjust blue card holders to permanent resident status if the person

- During the 8 years beginning on the date of enactment of the bill, performed 100 work days of agricultural employment during each of 5 years; or

- During the 5 year beginning on the date of enactment, performed 150 work days during each of 3 years.

Spouses and children can qualify as derivatives. DHS may credit the applicant with not more than 12 additional months to meet the requirement if they inability to work was based on a medical condition. Adjustment may be denied if DHS determines the person is no longer eligible for blue card status or failed to perform the qualifying employment noted above. The grounds of inadmissibility that were waived for obtaining blue card status also don’t apply for adjustment of blue card applicants.

Green card applicants must pay their taxes and document they are current.

Numerical limits on green cards don’t apply to blue card applicants seeking a green card.

Interviews may be required by DHS.

DHS may charge fees for adjustments but may set a family maximum and also waive the fees in the same was as possible for RPIs.

Workers are responsible documenting their work history in their adjustment applications.

Applicants who make false or fraudulent statements in blue card and related green card applications subject to criminal penalties.

Section 2213. Use of Information.

Beginning on the first day of the blue card application period DHS shall broadly disseminate information about the program.

Section 2214. Reports on Blue Cards.

Not later than 12/30/2013 and annually for the next 8 years, DHS shall submit a report to Congress on the usage of the blue card program.

Section 2215. Authorization of Appropriations.

Congress will make appropriations as necessary to implement the program for FY 2013 and 2014.

Subchapter B – Correction of Social Security Records

Section 2221. Correction of Social Security Records.

Insulates blue card holders from liability for past misstatements.

Chapter 2 – Nonimmigrant Agricultural Visa Program

Section 2231. Nonimmigrant Classification For Non-Immigrant Agricultural Workers.

Creates a new W-3 visa for agricultural workers who are employed under a contract and a W-2 for at will agricultural employees.

Section 2232. Establishment of Nonimmigrant Agricultural Worker Program.

Definitions –

- Agricultural employment

- At-will agricultural worker

- Blue card

- Contract agricultural worker

- Designated agricultural employer

- Electronic job registry

- Employer

- Nonimmigrant agricultural worker

- Program

- Secretary

- United States Worker

Requirements

Only designated agricultural employers and nonimmigrant agricultural workers can participate.

Limit of 112,333/year for four years. Allocated on a quarterly basis. Like the H-1B, if a W-3 or W-2 worker is counted against the cap, the next employer doesn’t have to claim a cap number.

DHS may increase or decrease the cap during the first 5 years based on shortage data submitted by agricultural producers and worker organizations, unemployment data, demand for blue cards, demand for W-3 and W-2 visas, and wage data. DHS may establish rules to allow for immediately adjusting numbers if there is a severe labor shortage.

The factors listed above will be used by DHS to set a cap in years six and later.

Requirements for W-2 and W-3 workers.

Workers are ineligible if they have violated the terms of admission as an NIV agricultural worker in prior three years. An exception is made for contractual workers who leave or are terminated. Workers must pass background checks. People with removal orders who are outside the US or illegally entered the US after 12/31/2012 are ineligible, but DHS may waive this ground for spouses and children of citizens and green card holders as well as the parents of citizens and permanent residents. Also, people otherwise eligible as DREAMers who are 16 when applying and were physically in the US for 3 of 6 years immediately preceding the date of the enactment are eligible for a waiver.

W-2s and W-3s can get an initial 3 year period of admission and can renew for 1 additional 3 year period. The worker must then leave the US for 3 months before seeking to come again as a W agricultural worker.

Loss of status –

W ag workers must leave the US if they have completed a contract with a designated ag employer and is no longer employed in agricultural employment with another ag employer. A 60 day grace period is provided for these workers

W ag workers who are at-will and are not continuously employed by a designated ag employer must leave. DHS may grant a waiver for up to 60 days without status if the worker was injured or displaced by a natural disaster.

Workers may leave the US for up to 60 days in any fiscal year while in W ag status and the 60 day limit noted above would be tolled.

Portability –

Contract ag workers are portable between designated ag employers. Contract workers who abandon a job must depart and reenter the US to pursue a new job offer and are not entitled to the 75% payment guarantee (described below).

Termination by mutual agreement shall not be considered voluntary abandonment.

At will ag workers are free to move between designated ag employers.

No derivative status for spouses and children (though they can qualify for W-2 or W-3 status on their own.

Employer requirements –

Designated Agricultural Employer Status – employers must register for designated status by submitting an application to DHS through the Farm Service Agency in a geographic area or electronically directly with DHS that includes documentation that the employer is engaged in agriculture and that they need

workers. DHS will include in the registration the number of workers the employer will need and the periods of employment authorized.

Employers will be designated for three years.

DHS s to provide assistance to employers, either directly or through the Farm Service Agency, assistance with the application process.

Employers seeking workers after designation would submit an application with USCIS not later than 45 days before the workers are needed. They must include an attestation listing the number of workers, the number that will be on a contract and the number to be employed at-will, the anticipated dates of employment, documentation of the contracts or written disclosure of employment terms, information submitted to the state workforce agency and the record of US workers who have applied and the results.

Portability – Once an employer has submitted a petition for W-2 and W-3 workers, a W ag worker in the US can begin employment with the new employer.

Recruiting –

Employers must list jobs for 60 days with the local office of the state workforce agency and authorize the posting on America’s Job Bank or something similar for 45 days. Employers must keep records of US applicants who are eligible, able, willing and qualified for the work and must show that employment was offered to such workers if they are equally or better qualified. Preference over W-2 and W-3 workers is also to be made for blue card workers. Employers may also hire H-2A workers if they worked for 3 of 4 years in the period preceding termination of the H-2A program and the employer pays the “adverse effect wage rate”.

Employers may not have displaced US workers in the preceding 30 days. Employers cannot bring on W-2 andW-3 workers if there is a labor dispute in progress.

Employers offering contracts must guarantee employment for the hourly equivalent of at least 75% of the work days of the total period of employment. If a worker can’t perform because of a disaster or other reason beyond the control of the employer, the employer may terminate the worker’s employment and the employer must pay the worker for the days elapsed from the first work day after the arrival of the worker. The employer should try to help with transferring the employee or assisting with return transportation home if a transfer does not take place.

Employers are required to provide workers compensation insurance at no cost to the worker and shall provide benefits at least equal to those provided under state law for comparable employment.

Deductions from wages are only permitted if they are authorized by law or are reasonable and customary in the occupation and area of employment of the worker.

Employers must provide housing that meets Federal standards for temporary labor camps or applicable local standards for rental or public accommodation housing or other similar housing. If the employer arranges public housing, the employer shall pay the landlord directly. Workers who damage their housing are responsible for the reasonable cost of repairing the damage.

Employers may also provide a “reasonable housing allowance” instead of arranging for housing, but the employer should assist the employee in locating suitable housing. The allowance cannot be used for housing that is owned or controlled by the employer.

Contract workers can only get a housing allowance if the Governor of the state certifies to DHS that there is adequate housing available in the area of intended employment. The certification must be updated at least every three years. If an allowance is provided in a nonmetropolitan county, the amount of the allowance must be the average fair market rental for existing housing in nonmetropolitan counties in the state, as determined by HUD based on a 2 bedroom unit and an assumption of 2 persons per bedroom. In metropolitan counties, the amount shall be the average fair market rental for housing in that particular metro area for a 2 bedroom unit (2 persons per bedroom).

The housing provisions don’t apply to workers who commute in from within 50 miles from a town on the other side of the border.

Employers must provide or reimburse a contract worker for the cost of transportation from a contract worker’s residence in the US to the worker’s place of employment. After 27 months of work are completed, the designated ag employer must reimburse the employee for the reasonable cost of the worker’s transportation and subsistence from the place of employment to the place from which the worker came from abroad to the employer. Travel under 100 miles need not be reimbursed.

A contract worker is also entitled to transportation and subsistence reimbursement if they completed at least 75% of a contract for the designated employer.

If a worker finds another employer, the next employer is responsible for transportation costs.

The employer is responsible for transportation costs is the worker is laid off even if 75% of the work is not completed.

Violating employers may be subject to fines and potential debarment from the program for up to 3 years by DHS.

Wages –

Employees paid by the piece must have the payment rate specified in the job offer and be no more than those which have been normally required by other employers in the geographic area, unless DHS approves a higher standard.

Workers are divided in to the following categories for wage purposes –

- First line supervisors of farming, fishing and forestry

- Animal breeders

- Graders and sorters, agricultural products

- Agricultural equipment operateor

- Farmworkers and laborers, crop, nursery and greenhouse

- Farmworkers, farm, ranch and aquacultural animals

The wage rate from FY 2014 to FY 2016 shall be the higher of the local minimum wage or specific rates listed in the bill for these various occupations. DHS is to index an increase in the required wage rate based on the movement of the Consumer Price Index but ranging between 1.5 and 2.5 percent per year. DHS may also factor in whether the amount would adversely affect wages paid to US workers and whether the H-2A program has depressed wages for US workers and whether the wages offered are enough to keep families over the poverty thresholds .

Equal wages, benefits and working conditions –

Employers must offer US workers no less than the same benefits, wages and working conditions as nonimmigrant workers.

Employers are not required to provide housing for similarly situated US workers.

Employers must provide an attestation whether the employer is a dependent employer with at least 60% of its workers who are not US workers.

Worker protections and dispute resolution –

W Ag workers entitled to the same rights as their US counterparts.

W Ag workers entitled to protection under the Migrant and Seasonal Agricultural Worker Protection Act and shall be treated like green card holders for purposes of qualifying for legal services under the Legal Services Corporation Act on matters relating to wages, housing, transportation and other employment rights. The Federal Mediation and Conciliation Services shall be available to assist in resolving disputes. $500K per year is allocated to the FMCS for this purpose.

DOL has the power to investigate employers who fail to comply with the program rules. Any aggrieved party including a bargaining representative can file a complaint within a year of the alleged violation. DOL can fine up to $1000 per misrepresentation violation and debar use of W ag visas for 1 year. More serious violators can be subjected to a $5000 per violation fine, equitable relief, and 2 years debarment. Employers violating the displacement provisions can be hit with a $15,000 per violation fine and 3 years debarment. The maximum civil penalty will be $90,000.

DOL can assess back wages, travel and subsistence costs, housing costs, etc. for the benefit of the worker. But a worker who has filed an administrative complaint can’t simultaneously pursue a separate civil complaint based on the same violations.

The section contains whistleblower protections for complaining workers.

Associations filing cases on behalf of an employer are not liable for the actions of the employer and the employer is liable for any violations. The exception is if the association was aware of the violations. Associations acting as employers are liable for violations unless the violation was only known to certain members and then the fine would only be assessed against the complicit ones.

The Department of Agriculture shall set special visa and wage rules for certain occupations:

- Sheepherding and goat herding

- Itinerant commercial beekeeping and pollination

- Open range production of livestock

- Itinerant animal sheering

- Custom combining industries; and

- Any other industry designated by DHS as a Special Procedures Industry

W ag workers are not eligible for need-based public assistance.

DHS will develop a system to monitor the movement of W ag workers along the lines of the SEVIS system for J and F visa holders.

Section 2233. Transition of H-2A Worker Program.

The H-2A program will sunset 1 year after the effective date of regs implementing the W ag worker program.

Section 2234. Reports to Congress on Nonimmigrant Agricultural Workers.

The Department of Agriculture has to submit an annual report that provides information on W ag worker admissions. DHS must submit an annual report on W ag workers violating the program rules who have not departed from the US.

Section by Section Summary of the Border Security, Economic Opportunity and Immigration Modernization Act – Title II – Immigrant Visas

By Greg Siskind – Siskind Susser, PC – Immigration Lawyers (gsiskind@visalaw.com)

TITLE II – IMMIGRANT VISAS

Subtitle C – Future Immigration

Sectoin 2301. Merit-Based Points Track One

The green card lottery provision setting the green card allocation for that eliminated category is replaced with new language providing for a new points-based green card category.

The cap for Track One of the Merit-Based system is 120,000 per year. The number will rise if the number available in a year is less than 75% of the number of people that apply. The increase would be a bump up of 5% in the next fiscal year. If the demand is less than that, the number would stay the same and the increase over the prior cap provided for that year based on the previous year’s demand would be subtracted. The maximum cap is 250,000.

The elevator provision will not kick in if the annual average unemployment rate is more than 8.5%.

There is a recapture provision which says that if the available green cards aren’t issued, the numbers will get added to the next year.

Section 203(c) of the INA which covers the green card lottery is replaced with a new section on Merit-based immigrants. During the first four years after enactment, the merit system will not be used, but the numbers allocated for the merit-based system will instead be added to the EB-3 category. Beginning in year five, half of the merit-based numbers will go to applicants with the highest number of points in the new Tier 1 and half will go to those with the highest number of points in Tier 2. Unused numbers in Tier 1 will be recaptured in the following year with 2/3 going to Tier 1 and 1/3 available to either Tier. Unused numbers in Tier 2 will be recaptured in the following year with 2/3 going to Tier 2 and 1/3 available to either.

Tier 1 point system

Education – 15 points for a doctorate degree, 10 points for a master’s degree, 5 points for a bachelors degree.

Employment – up to 20 points available; 3 points for each year working in a zone 5 occupation in the US; 2 points for each year working in a zone 4 job in the US. Zones are based on Department of Labor’s Occupational Information Network (O*NET) classifications.

Employment tied to education – if the job is related to one’s education, zone 5 jobs will get an applicant 10 points and zone 4 jobs get an applicant 8 points.

Entrepreneurship – Business owners get 10 points for employing at least 2 employees in a zone 4 or 5 job.

High Demand Jobs – 10 points for working full time or having a full time offer in a high demand occupation.

Civic Involvement – 2 points if an applicant has attested to working a significant amount of community service

English – scoring 80+ on TOEFL or a similar test is worth 10 points

Siblings and married sons and daughters of US citizens – Siblings of US citizens or married kids over 31 get 10 points

Age – 8 points for being between 18 and 24; 6 points for being between 25 and 32; 4 points for being between 33 and 37.

Country of Origin – People from countries with fewer than 50,000 people given green cards annually over the last five years get 5 points.

Tier 2 point system

Employment experience – 2 points for each year the alien has been lawfully employed in the US (up to 20 points)

Full time employment or an offer of full time employment in a high demand tier 2 job is worth 10 points and a job or job offer in a zone 1 or zone 2 job is worth 10 points.

Caregiver – Working as a primary caregiver is worth 10 points.

Exceptional Employment Record – 10 points for having an “exceptional employment” record as determined by USCIS. Factors include promotions, longevity, changes to higher skilled jobs, good safety records and increases in pay.

Civic Involvement – 2 points for significant civic involvement

English – Score of 75 on TOEFL or equivalent is worth 10 points; 5 points for scoring between 54 and 75.

Siblings and married sons and daughters of US citizens – Siblings of US citizens or married kids over 31 get 10 points

Age – 8 points for being between 18 and 24; 6 points for being between 25 and 32; 4 points for being between 33 and 37.

Country of Origin – People from countries with fewer than 50,000 people given green cards annually over the last five years get 5 points.

$500 fee for visas allocated under the merit-based points system.

Registered Provisional Immigrants legalized under that section of the bill can apply for merit-based green cards in Track One ten years after enactment of the bill.

People with pending or approved applications in other green card categories are not eligible to apply in the merit category.

Definitions –

“High Demand Tier 1 Occupation” – 1 of the 5 jobs with the highest number of H-1B applications filed by employers in the previous fiscal year.

“High Demand Tier 2 Occupation” – 1 of the 5 jobs with the highest number of positions registered by employers under the new W visa program in the prior fiscal year.

DHS may submit to Congress proposals to modify the points system described in this section.

This section takes effect on October 1st of the fiscal year beginning after the date of enactment. So, for example, if the bill passed this summer, the start date would be October 1, 2013. If it passed in November, the start date would be October 1, 2014.

Section 2302. Merit-Based Track Two.

Beginning October 1, 2014, the following people shall be eligible for merit-based green cards under this section:

1. Employment-based immigrants with cases pending more than 5 years. From fiscal years 2015 to 2021, 1/7 of the merit-based green cards will be allocated to the employment-based cases.

2. Family-based immigrants with cases pending more than five years for all those with cases pending before the bill passed or after the date of enactment for those in the 3rd and 4th preference categories (siblings and adult children – this should help significantly for those who otherwise would lose out with the elimination of many in these categories). From fiscal years 2015 to 2021, 1/7 of the merit-based green cards will be allocated to the family-based cases (excluding spouses and children of permanent residents as noted below).

3. Long-term workers and other merit-based immigrants – those admitted in categories other than the W visa who have been in the US for at least ten years (the number rises to 20 years beginning in FY 2029).

Spouses and children of permanent residents are automatically converted to immediate relatives.

The allocation of visas to the family backlogs will be done in a manner consistent with the applicants existing priority dates. Beginning in FY 2022, ½ of the available merit-based numbers in this category are allocated to the 3rd and 4th preference family cases and in FY 2023, an allocation will be made that’s enough to clear out that remaining backlog.

Registered Provisional Immigrants legalized under that section of the bill can apply for merit-based green cards under Track Two ten years after enactment of the bill.

Section 2303. Repeal of the Diversity Visa Program.

The green card lottery program is eliminated. Anyone who is processing a lottery green card or has received notification of winning for fiscal years 2013 and 2014 shall remain eligible under the rules in effect until September 30, 2014. No more lottery green cards will be issued beginning with FY 2015.

Section 2304. World-Wide Levels and Recapture of Unused Immigrant Visas.

In FY 2015, unused employment-based green cards from fiscal years 1992 to 2013 will be added to the FY 2015 green card allocation. After FY 2015, unused employment-based green card numbers will roll over to the following fiscal year.

In FY 2015, the unused family-based green cards from fiscal years 1992 to 2013 will be added to the 2015 green card allocation. After FY 2015, unused family-based green card numbers will roll over to the following fiscal year.

Section 2305. Reclassification of Spouses and Minor Children of Lawful Permanent Residents as Immediate Relatives.

Adds spouses and children under 21 of permanent residents to the immediate relative category thus enabling them to file without limit for green cards.

The allocation of 23,400 for Family 1st green cards for unmarried sons and daughters of citizens is changed to 20% of the family quota.

The second family category is converted to one for “unmarried sons and unmarried daughters of permanent resident aliens”. Currently, it is for spouses and unmarried children of green card holders, but spouses and minor children are moved to immediate relatives. The allocation for the new second preference family category is 20% of the family quota and whatever spill down there is from the 1st preference category.

The Family 3rd category’s allocation of 23,400 now is 20% and only accepts a spill down from family based 2nd preference (currently both 1st and 2nd).

The 4th family category is converted from 65,000 to 40% of worldwide family numbers and only taking a spill down from the 3rd preference (currently all three).

There is a new section requiring the State Department to “broadly disseminate” information to the public regarding the termination of green card petitions for people who don’t apply within a year following notification. Currently, termination happens based on mere notification by DOS. Applicants currently have a year to request reinstatement and that will change to two years if there was “good cause.” Currently, applicants must show “circumstances beyond the alien’s control”.

For children who turn 21 in the course of a parent’s processing such that they are not eligible to adjust as a minor child, the current procedure of automatically converting to an appropriate adult child family category and retaining the priority date continues and the priority date for those whose parents had an employment-based case will be the date of filing of the labor certification, not the I-140.

Allows certain green card applicants who are victims of abuse and criminal activity to file adjustments even if green card numbers are not available.

Section 2306. Numerical Limitations on Individual Foreign States.

Per country limits for employment-based cases are eliminated. Family limits rise from 7 to 15%.

This section takes effect one year after the bill is enacted.

Section 2307. Allocation of Immigrant Visas.

There will be a new family classification system going forward from the date of enactment of the bill.

Family 1A (currently Family 1st) will be for unmarried adult sons and daughters of US citizens shall get 35% of the worldwide numbers plus numbers not used in the Family 1B and Family 2nd category.

Family 1B (currently Family 3rd) is for married sons and daughters of citizens of the US under 31 years of age at the time of filing an I-130. They are allocated up to 25% of the numbers plus any leftover from Family 1A.

Family 2nd is for sons and daughters of green card holders (currently Family 2B) plus any numbers not used in Family 1A.

Cases will automatically convert like the current system upon marriage, divorce and death.

This system will take effect on the first day of the fiscal year beginning at least 18 months following enactment of the bill.

For employment cases, the following groups are no longer counted in the quotas:

1. Spouses and children

2. EB-1 extraordinary ability applicants

3. EB-1 outstanding researchers and professors

4. EB-1 multinational executives or managers

5. Any aliens with doctorate degrees

6. Doctors who have completed their J-1 two year home residence requirement or who have obtained a waiver based on the request of an interested state or federal agency under INA Section 214(l) including those who completed such service before the enactment of the bill.

EB-2 will now get 40% of the allocated visas plus leftovers from EB-5.

No green card cap on EB-2s who have earned master’s or higher in science, technology, engineering or math fields from accredited US institutions of higher education, who have an offer of employment in their field and who earned the degree within five years immediately prior to the initial filing of their petition.

The section defines institutions that are a “ United States doctoral institution of higher education.”

Moves the National Interest Waiver to a new Section 203(b)(2)(C).

Physician national interest waiver changes. Clarifies that it is available to both primary care and specialists. Allows FLEX applications if supported by either a local, county or state health department or a federal agency. Non-FLEX applications can be filed without such a recommendation as the designation as a shortage area are considered adequate. The five years of service shall include time worked in shortage locations prior to the NIW application and a new five year contract is not required as long as the submitted contract or affidavit covers the balance of the time required to meet the five year obligation. New I-140 applications are not required each time a physician changes work sites (as is the current rule).

Labor certifications. First, there appears to be a mistake in citation. Should be referring to the new (2)(B)(ii) of section 203(b) which refers to those with doctoral degrees in STEM fields. Those holding doctorates are exempt from the labor certification requirement under this section. The language refers to (2)(A)(ii) which does not exist.

EB-3 will now get 40% of the allocated numbers plus any numbers leftover from EB-2.

Physicians are considered to qualify for an H-1B if they have a license in any state in the US as opposed to just the state where the job is. This should facilitate physicians transferring between employers across state lines.

The 10,000 limit for unskilled workers is eliminated and all EB-3 workers are treated the same.

EB-4 now gets 10% of the allocated employment green card numbers plus any leftovers from EB-3.

EB-5 now gets 10% of the allocated green card numbers plus any leftovers from EB-4. This raises the EB-5 cap to 14,000 from 10,000.

Section 2308. V Nonimmigrant Visas

V non-immigrant visas are now available to the new Family-based 1A, 1B and 2 green card categories for adult married and unmarried children of citizens and permanent residents with approved I-130s as well as siblings and married children of US citizens over 21 (based on having cases filed before the new law is enacted). Employment authorization is permitted for these new V non-immigrants if they are in the new Family-based 1A, 1B and 2 categories but not if they are in the old sibling and over age 30 married child categories and admission to the US for these individuals is limited to 60 days a year on the V visa. The V

visa status will terminate 30 days after the underlying green card or adjustment application is denied. If siblings and over 30 married children enter on the V visa, they may not participate in the merit-based points green card system.

V visa holders are not eligible for any means-tested public benefits as well as access to certain sections of Obamacare.

This section takes effect on the first day of the fiscal year beginning after the date of enactment.

Section 2309. Fiancée and Fiancé Child Status Protection.

Now adds green card holders in to the K-1 and K-3 categories. It also changes the rule on the admission of minors to clarify that they lock in as under 21 based on the date the K non-immigrant petition is filed and not just the day a green card application is filed.

Changes the rule that currently requires a departure from the US in the event the marriage doesn’t happen within three months after admission. The new language says the visa shall automatically expire and the alien will be placed in removal proceedings. But that if the marriage takes place within 90 days, the K will automatically continue and expire after six months from the marriage. The applicant is expected to file to adjust status during that six month period.

This section shall take effect on the first day of the first fiscal year beginning no earlier than one year after the date of the enactment of the bill.

Section 2310. Equal Treatment for All Stepchildren

Current law considers stepchildren the same as biological children if the stepchild relationship is entered in to before the age of 18. That age is raised to 21.

Section 2311. International Adoption Harmonization.

Raises the age that adoptions are considered for immigration to 18 from 16. This applies to both adoption, orphan cases and Hague cases.

Section 2312. Relief for Orphans, Widows and Widowers

Allows widows and orphans to file immediate relative petitions to file even if the death occurred before enactment of the new law but there is a two year limit from the date of enactment to make such a filing. People who were unable to file previously and who have left the US are eligible to be paroled to the US in order to file to adjust status to permanent residency.

People unable to complete green card processing because the qualifying relative died before the completion of immigrant visa processing may have an immigrant visa application adjudicated as if the death had not occurred. Immigrant visas issued before the death remain valid after the death. This section applies to immediate relatives, family-sponsored immigrants, derivatives of employment-based

immigrants and spouses and children of refugees and asylees. If an application was terminated because of the death, the widow or orphan can seek to renew by filing a motion to reopen without paying a fee.

The three year naturalization residency requirement applicable to spouses of US citizens will now apply to widows and widowers.

Waivers available to spouses and children of qualifying immigrants will now be available to surviving widows and children as if the death had not occurred and the death of the qualifying relative shall be the “functional equivalent” of hardship in cases requiring proof of hardship.

The current requirement of an immediate relative to file a petition within two years of the qualifying relative’s death is eliminated.

Section 2313. Discretionary Authority With Respect to Removal, Deportation or Inadmissibility of Citizen and Resident Immediate Family Members.

Gives judges the authority to halt a deportation if the judge decides that the removal would be against the public interest or result in hardship to the alien’s US citizen or permanent resident parent of a child, spouse, or child or the judge decides the alien is eligible to naturalize except that this won’t apply to people excludable for criminal, security, and other similar grounds.

DHS has new authority to waive a ground of inadmissibility if the Secretary determines that the refusal of admission is against the public interest or would result in hardship to a US citizen or permanent resident spouse, parent or child except that this won’t apply to people excludable for criminal, security and other similar grounds.

The current statute at 241(a)(5) is changed. Current law says that if an alien reenters illegally after having been removed or voluntarily departed, the prior order of removal is reinstated and may not be reopened or reviewed and no relief is available. That will change if the reentry occurred before attaining the age of 18 or reinstatement of the prior order of removal would not be in the public interest or would result in hardship to the alien’s US citizen or permanent resident spouse, parent or child.

Section 2314. Waivers of Inadmissibility.

The 212(a)(9) three and ten year bars are altered. They will no longer apply to aliens who file for H nonimmigrant petitions and who have earned a bachelors or higher degree from a US institution of higher education and who entered the US initially before the age of 16.

The section also broadens waiver possibilities by considering hardships to those who are the parents of US citizens or green card holders. Hardships no longer need to be “extreme.”

212(a)(C)(i) which imposes a ten year bar on readmission for someone who remains in the US for more than a year unlawfully will now get the same exceptions as in 212(a)(9)(B).

212(a)(6)(C) now adds a new provision that bars admission if one has committed fraud or willfully misrepresented a material fact when seeking to procure a visa or admission to the US. The current

permanent bar based on false claims to US citizenship is modified to exclude claims made before the age of 18 or where the person lacked the mental competence to knowingly misrepresent a claim of US citizenship. A new waiver is available if the inadmissibility would result in extreme hardship to the alien of to the alien’s parent, spouse or child who is a US citizen or green card holder or in the case of a VAWA self-petitioner, there would be a significant hardship. No judicial review is permitted for such waiver applications.

Section 2315. Continuous Presence.

In cancellation of removal cases, the provision that stops the clock on counting continuous residence when a person commits an offense under INA Section 212(a)(2) is removed.

Section 2316. Global Health Care Cooperation.

DHS will allow aliens and derivatives to reside in “candidate” countries and get credit toward naturalization residency time if they are working as a physician or other health care worker. Candidate countries are those determined by the State Department to meet various development criteria. Applicants must have already received a green card. This section won’t take effect until regulations are issued and these must occur within 180 days after enactment of the law.

Physicians and other health care workers are inadmissible unless they submit an attestation that they are not seeking to enter the US during a period when they have an obligation to their home country. Obligation is defined to mean receiving financial assistance to defray the costs of education or training to qualify as a physician or other health care worker in exchange for agreeing work in the alien’s country of origin or residence. Waivers are permitted if the applicant can show the obligation was incurred by coercion, a settlement with the home country has been reached or there are extraordinary circumstances including undue hardship.

This section takes effect after 180 days from the bill enactment.

Section 2317. Extension and Improvement of the Iraqi Special Immigrant Visa Program.

Calls on DOS and DOD to improve the efficiency of handling these applications and to adjudicate the cases within nine months.

Limits the benefit to those employed on or after 20 March 2003 for a year or more. Extends the benefit to those who worked for entities closely associated with the US mission in Iraq that received US government funding.

An appeal process is created for denied applicants.

Section 2318. Extension and Improvement of the Afghan Special Immigrant Visa Program.

Now applicable to those present in Afghanistan on or after 7 October 2001 for at least a year or employed by the US government or a media or nongovernmental organization headquartered in the US or an organization closely linked to the US mission in Afghanistan. The benefit extends to family

members. Denied cases may be appealed. There is a limit of 5,000 per year for FY 2014 to 2018 plus unused numbers from 2009 to 2013. Unused numbers will now be carried forward. Applications need to be adjudicated within 9 months.

Section 2319. Elimination of Sunsets for Certain Visa Programs.

The EB-4 special immigrant category for religious workers who are not ministers is permanently reauthorized. The EB-5 regional center program is permanently reauthorized.

SUBTITLE D – Conrad State 30 and Physician Access

Section 2401. Conrad State 30 Program.

Permanently reauthorizes the Conrad 30 J-1 waiver program for physicians. It was set to expire in 2015.

Section 2402. Retaining Physicians Who Have Practiced in Medically Underserved Communities.

Ends green card limits for physicians who do National Interest Waivers. Spouses and Children are included.

Clarifies the NIW petitions may be filed before the date the physician completes the five year service obligation.

Section 2403. Employment Protections for Physicians.

The 90 day clock for beginning work in the waiver job is set at the time of getting the waiver, finishing training or getting the work authorization, whichever is latest.

Allows easier transfers to new employers within the three years. In addition to current provision on extenuating circumstances, the original sponsoring agency can approve or the doctor can agree to work one additional year in an underserved area.

New contract requirements calling for the specification of on-call time, specification on who pays for the malpractice coverage, listing all work locations and attesting that new ones won’t be added without government approval and barring non-compete provisions.

Provides a new 120 grace period for doctors to find new employment in the event of a termination.

Section 2404. Allotment of Conrad 30 Waivers.

Allows for increase in J-1 waiver slots for each state if 90% of the waivers for the country are used (states using less than 5 waivers are not factored in). Slots can be increased by 5 per year.

A new program permits academic medical centers to get three additional slots per state without regard to whether the location is in a shortage area.

Section 2405. Amendments to the Procedures, Definitions, and Other Provisions Related to Physician Immigration.

J-1 physicians are considered dual intent.

Doctors can satisfy the three year service requirement in any work status and not just H-1B.

NIW cases may be approved for FLEX locations if there is support from an interested local or state health agency or a federal agency. Regular NIW cases can be approved on the basis of shortage designation alone without an agency’s letter.

H-1B cap gap relief for doctors who train on H-1Bs at a cap exempt location and find the H-1B cap prevents them from starting work upon conclusion of their training. Their H-1B is automatically extended until October 1 of the fiscal year and can be extended until a visa number becomes available.

Spouses and children on J-2s are not subject to INA Section 212(e)’s home residency requirement.

SUBTITLE E – Integration

Section 2501. Definitions.

CHAPTER 1 – Citizenship and New Americans

Subchapter A – Office of Citizenship and New Americans

Section 2511. Office of Citizenship and New Americans.

Renames the Office of Citizenship at USCIS to Office of Citizenship and New Americans.

The office shall promote institutions and training on citizenship responsibilities for people interested in becoming US citizens, coordinate immigrant integration programs across the country, advise DHS on integration challenges and opportunities, establish national goals for integration, establish metrics for integration, identify integration implications of new or proposed immigration policies and serve as the liaison to states and local governments on this subject. The section takes effect one year from enactment.

Subtitle B – Task Force on New Americans

Section 2521. Establishment.

DHS shall establish a Task Force on New Americans within 18 months of enactment. It is inetended to establish a coordinated Federal response to integration issues and advise DHS in establishing related policies.

The Task Force shall be comprised of the Secretaries of DHS, Treasury, Commerce, HHS, HUD, Transportation, Education, Labor and the Attorney General as well as the heads of OMB, the SBA, the Domestic Policy Council and the National Economic Council. Such heads can designate a delegate.

Chapter 2 – Public-Private Partnership

Section 2351. Establishment of United States Citizenship Foundation. USCIS is authorized to establish a United States Citizenship Foundation.

Section 2352. Funding.

The Foundation may solicit gifts and engage in coordinated work with DHS. The Foundation’s purpose is to expand citizenship preparation programs, provide direct assistance to those seeking RPI, green card, or naturalization, and to coordinate immigrant integration with state and local entities.

Section 2534. Authorized Activities.

To make citizenship instruction services accessible to low-income and other underserved permanent resident populations, develop best practices for citizenship preparation, support creative solutions to barriers faced by those seeking to naturalize, increase the use of technology in naturalization preparation, engaging receiving communities in integration and administering a New Citizens Award Program to recognize 10 US naturalized citizens per year who have made outstanding contributions.

Section 2535. Council of Directors.

The Foundation’s structure is described.

Section 2536. Powers.

The job of the Executive Director is described.

Section 2537. Initial Entry, Adjustment and Citizenship Assistance Grant Program.

DHS, acting through USCIS may award Initial Entry, Adjustment and Citizenship Assistance Grants to eligible public or private, non-profit organizations. The funds will be used to assist organizations helping with RPI, green card and naturalization applications.

Section 2538. Pilot Program to Promote Immigrant Integration at State and Local Levels.

Provides for making grants to state and local governments and other entities to establish New Immigrant Councils to help with integration.

Section 2539. Naturalization Ceremonies.

DHS will develop a strategy to enhance the public’s awareness of naturalization ceremonies and shall seek out outstanding and historic venues.

Chapter 3 – Funding.

Section 2541. Authorization of Appropriations.

The Office of Citizenship and New Americans will receive $10,000,000 for the five years ending September 30, 2018 and sums as necessary beyond that. Grants of $100,000,000 for the five years ending in 2018 and sums as necessary beyond that.

Chapter 4 – Reduce Barriers to Naturalization.

Section 2551. Waiver of English Requirement for Senior New Americans.

The English test will no longer be required for people over 65 who have been living in the US for at least five years since becoming a permanent resident. Also, it won’t apply to those over 60 residing in the US for ten years. The civics exam may be waived for those over 60 present for at least ten years after getting a green card.

Section 2552. Filing of Applications Not Requiring Regular Internet Access.

DHS may not mandate electronic filing of green card and citizenship applications. This section shall cease to be effective on 1 October 2020. After that, DHS can only mandate electronic filing if they notify Congress at least 30 days in advance.

Section by Section Summary of the Border Security, Economic Opportunity and Immigration Modernization Act – Title III – Interior Enforcement

By Greg Siskind – Siskind Susser, PC – Immigration Lawyers (gsiskind@visalaw.com)

Subtitle A – Employment Verification System

Section 3101. Unlawful Employment of Unauthorized Aliens.

Clarifies that the statute should not be construed to prohibit the employment of a person who is authorized for employment in the US if the person was previously an unauthorized alien.

Clarifies that state certification of individual referred by the state employment agency can be used to defend the employment of that worker if there is a question about the worker’s authorization.

Broadens good faith defense in I-9 investigations. Extends good faith language to E-Verify if the employer notes in E-Verify the reason for continuing employment despite not getting verification. Note that employers not required to use E-Verify can use that fact as the defense.

But defense is limited if the failure to comply is not insignificant, DHS has explained to the employer why the failure to comply is not minor, the employer was given 30 days to correct the problem, and the problem was still not corrected. Also, “pattern or practice” violators cannot invoke the good faith defense.

After an employer is required to use E-Verify, hiring a person without running them through E-Verify will be deemed to be knowledge that the person is unauthorized.

Employers cannot deny back pay or any other remedy under the law on account of the employee’s status as an unauthorized alien. Reinstatement and “appropriate” relief shall be available to people lawfully present in the US at the time relief is requested who lost employment authorized status due to the unlawful acts of the employer and for whom reinstatement would restore such status.

Definition of “employer” modified to include government agencies, but exclude employment that is “casual, sporadic, irregular, or intermittent”.

Documents. USCIS must publish a picture of each document valid for I-9/E-Verify purposes on its web site.

List of acceptable documents evidencing employment authorization: US passports, green cards, employment authorization documents, REAL ID compliant drivers licenses, foreign passport accompanied by Form I-94, Micronesian or Marshall Islands passport with evidence of nonimmigrant admission.

List of documents establishing identity: most state drivers licenses, a document issued under the Intelligence Reform and Terrorism Prevention Act of 2004, or, if a person is under 18, a document DHS prescribes (including an attestation by an adult).

List of documents establishing employment authorization: social security card or any other item DHS determines to be secure.

DHS shall develop a photo tool that enables employers to match the photo on an identity document to one maintained by USCIS in its databases.

DHS may bar documents that are not considered secure (such as certain state drivers licenses).

E-Verify

All federal agencies must use E-Verify beginning within 90 days of the passage of the law if they’re not already required to do so. Federal contractors must participate consistent with the DHS rule published in 2008.

One year after issuing rules, DHS may direct employers responsible for protecting, securing, operating, etc. part of the “critical infrastructure” to use E-Verify.

Within two years after regulations are published, all employers with 5000+ workers must be signed up for E-Verify.

Within three years after regulations are published, all employers with more than 500 workers must be signed up for E-Verify.

Agricultural and all other employers have four years to sign up after regulations are issued. Indian tribes have an extra year.

Immigration violators can be required by DHS to sign up earlier than required.

And, of course, employers can still voluntarily participate.

Failure to use E-Verify will be considered a civil infraction.

The statute codifies much of what already exists in the rules regarding the functioning of E-Verify.

The ten day limit on employers to employ workers after a non-confirmation is received can be extended at the discretion of DHS. Workers have the right to remain employed during an appeal process. The appeals process is laid out in this section. Employees may be entitled to lost wages, compensation and attorney fees and either the employer of the federal government could be ordered to pay them depending on who a judge deems responsible.

$40,000,000 per year are authorized to fund advertising campaigns to make employers aware of the new requirements.

Employers insulated from liability for actions taken in reliance on E-Verify.

DHS is required to implement a number of measures to protect the privacy and security of records in E-Verify.

A new identify theft protection measure is being required that would allow individuals to lock the use of a social security number to one employer. Also, DHS will set up a system for handling cases when an SS# has been used multiple times or is otherwise suspected to have been used in identity fraud.

DHS will have the authority to administer a $250,000,000 grants program to help states develop REAL ID compliant drivers licenses.

DHS will be required to report to Congress after 18 months on the accuracy of E-Verify and other aspects of the system.

DHS’ E-Verify enforcement system is described in this section including the investigatory authority, the administrative process for prosecuting employers, and the penalties.

The penalties (effective one year from the date of enactment of the bill)

Hiring or continuing to employ unauthorized aliens - $3500 to $7500 per worker; $5000 to $15,000 per worker for people with one previous violation; $10,000 to $25,000 per worker for 3+ violators.

Failing to use E-Verify if required – to be established later by DHS

Recordkeeping or verification practices - $500 to $2000 for each violation initially; $1000 to $4000 for second violations; and $2000 to $8000 for 3+ violators.

Customized penalties involving cease and desist orders, compliance plans, suspended fines, etc. also allowed. Fines can also be reduced based on a variety of factors.

Liens may be placed on an employer’s property if they fail to pay penalties.

Federal contractors with more than three violations can be debarred from receiving federal contracts.

After E-Verify is mandatory, DHS may require an employer certify compliance or institute a compliance program.

New preemption provision that bars states and localities from lawmaking around employer compliance. They can still limit business licenses, however.

New criminal penalties for pattern or practice violators. $10,000 fine and up to two years in jail (up from $3000 and six months in jail).

Employers who knowingly employ ten or more workers without authorization in a one year period and violate certain labor conditions can be subject to fines and imprisonment of up to ten years.

Section 3102. Increasing Security and Integrity of Social Security Cards.

SSA shall develop fraud-resistant, tamper-resistant, wear-resistant and ID theft-resistant Social Security Cards. Work on this will begin with 180 days of passage of the bill and will be completed in five years. $1 billion will be allocated for this in FY 2014.

Individuals can be issued no more than 3 cards per year and 10 over one’s lifetime. Reasonable exceptions may be made.

New penalties for social security fraud tied.

Section 3103. Increasing Security and Integrity of Immigration Documents.

Within a year of enactment of the bill, DHS shall submit to Congress a report on adding new biometric information on immigration employment documents.

Section 3104. Responsibilities of the Social Security Administration.

SSA shall establish a reliable method to compare its records to an inquiry in E-Verify. They will also be barred from releasing information to employers through the confirmation system other than to confirm or nonconfirm authorization for employment.

Section 3105. Improved Prohibition on Discrimination Based on National Origin or Citizenship Status

Amends the nationality discrimination provisions in IRCA to include abusive use of E-Verify.

Expands the exceptions to employers of five or fewer employees (currently set at three). The exception doesn’t apply to employment agencies.

EEOC is given authority to refer all immigration-related unfair employment practices to the Office of Special Counsel for Immigration-Related Unfair Employment Practices at DOJ.

Fines for national origin or citizenship status discrimation. $2k to $5k per worker for first violation; $4k to $10k per worker for second; $8k to $25k per worker for subsequent violations.

Effective one year from passage.

Section 3106. Rulemaking.

DHS must issue regs implementing Sections 3101, 3104 and 3105 above within a year. DOJ must issue regs for 3102 within a year. Those regs will be effective immediately on an interim basis. Final regs must be issued within a reasonable time.

SUBTITLE B – Protecting United States Workers.

Section 3201. Protections for Victims of Serious Violations of Labor and Employment Law or Crime.

Expands U visa category to cover serious labor violations. Adds child abuse when the child is a minor and stalking to the U visa violations list.

Provides immigration protection to workers who are whistleblowers whose information results in a DHS enforcement action. False claims can result in a fine of up to $1000.

Section 3202. Employment Verification System Education Funding.

Fines will be applied to funds for educating employers about E-Verify and employer compliance.

Section 3203. Directive to the United States Sentencing Commission.

The US Sentencing Commission shall promulgate sentencing guidelines for the new violations outlined in this section.

Section 3204. Confidentiality for Victims of Crime.

Adds privacy protections for victims of crime who are involved in enforcement actions under this section.

Subtitle C – Other Provisions

Section 3301. Funding.

Sets up an Interior Enforcement Account with $1 billion to carry out the provisions of this subtitle.

5000 people will be employed to administer E-Verify.

Money will be used to implement technology to support the system.

The SSA will get funding to carry out its piece in E-Verify.

Section 3302. Effective Date

This section will take effect upon enactment.

Section 3303. Mandatory Exit System.

By 12/31/2015, DHS will establish a mandatory exit data system that shall include a requirement for the collection of data from machine readable visas, passports and other travel and entry documents for all categories of aliens who are exiting from air and sea ports.

Section 3304. Identity-Theft Resistant Manifest Information For Passengers, Crew, and Non-Crew Onboard Departing Aircraft and Vessels.

Air and sea lines officials are responsible for transmitting to CBP identity-theft resistant departure manifest information covering passengers, crew and non-crew. The US-VISIT system will be used to collect the information.

$500 million is allocated to reimburse carriers for their reasonable expenses in carrying out their duties in this section.

Section 3305. Profiling.

Bars Federal law enforcement officers from using race or ethnicity to any degree unless a specific suspect description exists. There are exceptions for preventing threats to national security or other catastrophic events.

SUBTITLE D – Asylum and Refugee Provisions.

Section 3401. Time Limits and Efficient Adjudication of Genuine Asylum Claims.

Eliminates the requirement to apply for asylum within one year after a person enters the country (this is actually what the law was before the 1996 Act).

Cases denied based on the one year requirement can be reopened for two years beginning on the date of enactment if the person is still in the US and does not have a safe third country available.

Section 3402. Refugee Family Protections.

Broadens the ability to bring in spouses and children of refugees.

Section 3403. Clarification on Designation of Certain Refugees.

Allows the President and Secretary of State, in consultation with the DHS Secretary, to specifically designate groups of aliens whose resettlement in the US is justified by humanitarian concerns or is otherwise in the national interest. This essentially makes the Lautenberg Amendment permanent rather than requiring Congress to regularly have to extend the provision.

Section 3404. Asylum Determination Efficiency.

If a CBP officer determines that an alien has a credible fear of persecution, the case will go to an asylum officer rather than go to a judge. This is designed to be a lot faster.

Section 3405. Stateless Persons in the United States.

Provides new relief for people designated as stateless by DHS. Criminal and security grounds of inadmissibility still apply. Work/travel authorization may be granted. Stateless individuals may apply to adjust to permanent residency after a year subject to the numerical limits of EB-4 (special immigrants).

Section 3406. U Visa Accessibility.

Raises cap for U visas from 10,000 to 18,000 of which up to 3,000 may be issued to aliens covered in the new U visa section above.

Section 3407. Representation at Overseas Refugee Interviews.

Permits refugee applicants overseas be represented by attorneys or accredited representatives. Gives additional rights to applicants to have case reviewed. Imposes additional requirements on reviewing officers to document the basis for the decision.

Subtitle E – Shortage of Immigration Court Resources for Removal Proceedings

Section 3501. Shortage of Immigration Court Personnel for Removal Proceedings.

Mandates increases in the number of immigration judges.

1. 75 in FY 2014

2. 75 in FY 2015

3. 75 in FY 2016

Annual increases in Board of Immigration Appeals staff

1. 30 in FY 2014

2. 30 in FY 2015

3. 30 in FY 2016

Section 3502. Improving Immigration Court Efficiency and Reducing Costs by Increasing Access to Legal Information.

Gives DOJ discretion to appoint counsel at government expense to aliens in removal proceedings.

Counsel shall be appointed at government expense to represent unaccompanied alien children and those unable to represent themselves due to a serious mental disability.

Section 3503. Office of Legal Access Programs.

Establishes an Office of Legal Access Programs at the Department of Justice’s Executive Office for Immigration Review to develop and administer a system of legal orientation programs to make immigration proceedings more efficient and cost effective. The programs will assist detained aliens to make informed and timely decisions regarding their removal and eligibility for relief. Such programs must be available to aliens within five days of being put in custody. The office may provide services to certain individuals in proceedings and also shall identify children and persons with mental disabilities for consideration for representation under Section 3502.

Section 3504. Codifying Board of Immigration Appeals.

Amazingly, the BIA is not actually provided for in the Immigration and Nationality Act. Now it will be.

Section 3505. Improved Training for Immigration Judges and Board Members.

EOIR shall review and modify, as appropriate, training programs for immigration judges and BIA members.

Section 3506. Improved Resources and Technology for Immigration Courts and Board of Immigration Appeals.

Provides that immigration judges have updated reference materials (the don’t already?) and standard decision templates that conform to the law of the circuits where they sit. EOIR shall produce a practice manual describing best practices for the immigration courts and make those manuals available electronically to counsel and litigants practicing in immigration court.

Tape recording will be replaced with digital recording. This will happen within a year.

Within a year, EOIR shall report on the need to improve transcription and translation services.

Subtitle F – Prevention of Trafficking in Persons and Abuses Involving Workers Recruited Abroad.

Section 3601. Definitions

Adds new definitions for “foreign labor contractor” and “foreign labor contracting activity”.

Section 3602. Disclosure.

Persons engaged in foreign labor contracting activities shall disclose in writing in English and in the worker’s primary language information on the identity and address of the US employer, all terms of employment, a signed copy of the contract with the employer, the type of visa under which the worker will be employed as well as the terms of the visa, education to be provided, a list of any costs to be charged to the worker, the existence of any labor issues at the place of employment (strike, union organizing effort, etc.), information on benefits available to the worker, and a statement attesting that there are no hidden fees or requirements not disclosed as well as information on victim trafficking protections.

Section 3603. Prohibition on Discrimination.

It shall be unlawful for an employer or a foreign labor contractor to fail or refuse to hire, discharge, intimidate, threaten, restrain, coerce, or blacklist any individual or otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, creed, sex, national origin, religion, age or disability.

Section 3604. Recruitment Fees.

No employer, foreign labor contractor, or agent or employee of a foreign labor contractor shall assess any fee (including visa fees, processing fees, transportation fees, legal expenses, placement fees and other costs) to a worker for any foreign labor contracting activity.

Section 3605. Registration.

Foreign labor contractors must obtain a certificate of registration from the US Department of Labor. Employers are required to notify DOL of the identity of foreign labor contractors used. Foreign labor contractors must disclose to the government subcontractors used. Certificates will be valid for two years.

DOL must issue regulations with 180 days of enactment and shall design an electronic process for collecting information.

Violators can be barred for up to five years from registering.

Section 3606. Bonding Requirement.

DOL shall require a foreign labor contractor to post a bond in an amount sufficient to ensure it can meet its responsibilities including wages.

Section 3607. Maintenance of Lists.

DOL shall maintain a list of all foreign labor contractors including the countries where they recruit, the employers for whom they recruit, the visa categories and occupations of their workers and the states where the workers are employed. The list must be updated every six months.

Section 3608. Amendment to the Immigration and Nationality Act.

A visa may not be issued in a variety of categories for workers unless the consular officer has provided the applicant a copy of the information required in the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 and has made a part of the visa file the foreign labor recruiter disclosures required in Section 3602 above.

Section 3609. Responsibilities of Secretary of State.

The State Department shall ensure that each consulate has an officer who is responsible for receiving information from workers subject to violations under this section. That person is responsible for sharing information with the DOL DOJ and other relevant Federal agencies.

Consulates must maintain information regarding the identities of labor contractors and their employer clients and make the information publicly available in written form and online.

Section 3610. Enforcement Provisions.

DOL shall establish a process to handle complaints filed by any person regarding complaints against a labor contractor’s compliance with the rules in this section. They are authorized to fine up to $10,000 per violation with that number increasing to up to $25,000 per violation at the point of a third violation. Individuals may pursue civil actions and can be awarded up to $1000 per plaintiff per violation plus attorney fees. Other relief is available as well. Employers have a safe harbor if they use a contractor registered under this section and don’t act with reckless disregard of the contractor’s violations or fail to report violations if it learns of them.

Whistleblowers are given protection. And parole may be granted to allow people to get to the US to participate in legal proceedings.

Section 3611. Rule of Construction.

Nothing in this section bars pursuing rights under other areas of the law.

Section 3612. Regulations.

Regulations may be issued to carry out this section.

Subtitle G – Interior Enforcement

Section 3701. Criminal Street Gangs

Adds new language adding gang-related convictions to the criminal inadmissibility grounds and also allows DHS to remove people over 18 it knows to have participated in street gangs engaged in illegal activities. A waiver is available if the person has renounced all association with the gang, is otherwise admissible and is not a security threat.

Aliens over 18 with convictions related to being in a gang or if DHS determines the person was in a gang cannot participate in the RPI program. A waiver is available if the person has renounced all association with the gang, is otherwise admissible and is not a security threat.

Section 3702. Banning Habitual Drunk Drivers From the United States.

Adds a new ground of inadmissibility and also for deportation for people with three or more convictions on separate dates relating to driving while intoxicated. One of the three must be after the bill is enacted.

Section 3703. Sexual Abuse of a Minor.

Broadens the definition of “sexual abuse of a minor” for purposes of determining if it is an aggravated felony to include cases where the age of the victim is determined by evidence in the record of conviction or by credible outside evidence even if the age of the victim is not stated in the conviction itself.

Section 3704. Illegal Entry.

Toughens the rules on illegal reentries. Higher penalties if the person reentering has multiple criminal convictions. Increases the penalties – 12 months for first conviction (currently six months); 3 years for the second (currently two years); up to ten years for 3+ (currently, the maximum is two years).

Illegal reentrants with a felony conviction for more than 30 months can be sentenced to up to 15 years.

Violators over 18 may also be subject to civil penalties.

Aliens deported who did not finish their jail sentence will have to complete the jail sentence after they are convicted for illegally reentering.

Section 3706. Penalties Related to Removal.

Increases penalties for operators of vessels or aircraft who aid people illegally entering the country unless the person can show they were uncompensated and offering assistance for humanitarian reasons.

Section 3707. Reform of Passport, Visa, and Immigration Fraud Offenses.

Creates a new crime of trafficking in passports. Offense requires dealing in at least three or more passports. Fines and up to 20 years in jail. If the crime is related to terrorism, the sentence can be up to twenty five years plus a fine.

New crime for making false statements in an application for a passport. Up to 25 years imprisonment if related to terrorism, 20 years if related to drug trafficking, or 15 years in other cases.

New crime for misuse of a passport. Using a passport in violation of the rules relating to its use or using forged or fraudulent passports can result in a sentence of up to 20 years.

Dealing in immigration documents (whether real or counterfeit) can result in a sentence of up to 20 years.

Section 3708. Combating Schemes to Defraud Aliens.

This is a section that goes after notarios. People submitting applications will have to identify who assisted them in preparing or translating the immigration submissions as well as anyone they paid in connection with preparing the application. DOJ can commence a civil action to enjoin a provider from further engaging in any fraudulent conduct that interferes with the proper administration of immigration laws or who willfully misrepresents their authority to provide representation before the DOJ or DHS.

Section 3709. Inadmissibility and Removal for Passport and Immigration Fraud Offenses.

Creates a new ground of inadmissibility and removability for violating Section 3707 and 3708.

Section 3710. Directives Related to Passport and Document Fraud.

The US Sentencing Commission shall establish guidelines for the new offenses.

Section 3711. Inadmissible Aliens.

Closes a loophole allowing certain aliens seeking admission “within” five years after removal and changes it to “not later than” five years.

People who withhold biometrics are ineadmissible.

Adds domestic violence, stalking and child abuse to the inadmissibility grounds. It adds violators of protection orders to the inadmissibility grounds.

This section covers acts occurring after the law takes effect.

Section 3712. Organized and Abusive Human Smuggling Activities.

Adds a new human smuggling offense which carries a sentence of up to 20 years plus fines (30 years if serious bodily injury is involved). 30 years if more than ten people are involved. 30 years if bribery or corruption of a US or foreign government official is involved. 30 years if the violation involves robbery or extortion. 30 years if the violation involves an involuntary sexual act. Life imprisonment if a death results.

Transmitting the location or activities of a law enforcement agency with the intent to further a crime relating to US immigration, customs, controlled substances, agriculture, monetary instruments or other border controls can be punished by up to 10 years in prison.

Up to 20 years in prison for destroying or damaging a border barrier, or seeking to thwart a barrier or technology at the border shall be punishable by up to ten years in prison. 20 years if a firearm is involved.

Section 3713. Preventing Criminals from Renouncing Citizenship During Wartime.

Eliminates the bar on renouncing citizenship during times of war.

Section 3714. Diplomatic Security Service.

Allows DOS’ Diplomatic Security Service to investigate illegal passport or visa issuance or use and identity theft or document fraud affecting DOS operations.

Section 3715. Secure Alternatives Program.

DHS shall establish a secure alternatives program in each field office to provide alternatives to detention of people in removal proceedings. DHS will contract with nongovernmental community organizations to conduct screenings of detainees, provide appearance assistance services and operate community-based supervision programs. DHS will make individualized determinations of eligibility for the secure alternatives program.

Section 3716. Oversight of Detention Facilities.

DHS shall ensure that all persons in DHS detention are treated humanely and be protected.

All detention facilities will be inspected annually. Unannounced inspections will also take place.

DHS will consult with nongovernmental organizations regarding their independent opinions of particular facilities.

Contracts with outside detention center operators will be modified within 180 days to incorporate new terms required by this section. Contracts not modified with a year of enactment of the bill will be cancelled unless a reasonable extension is warranted.

Section 3717. Procedures for Bond Hearings and Filing of Notices to Appear.

A Notice to Appear or other charging document shall be filed within 72 hours of a person being taken in to custody. A decision on whether the person should remain in custody should happen within that period as well. The AG shall ensure the person has the chance to appear before an immigration judge for a custody determination promptly after DHS’ custody decision is made. The judge may postpone the custody determination for no more than 72 hours after the DHS decision is made. The judge may detain the alien only if DHS shows that no conditions, including the use of alternatives to detention that maintain custody over the alien will reasonably assure the person’s appearance and the safety of the community. The AG must review the custody determination every 90 days.

Section 3718. Sanctions for Countries that Delay or Prevent Repatriation of Their Nationals.

DOS will bar issuing G visas to nationals of countries that denies or unreasonably delays accepting aliens who are its citizens, subjects, nationals or residents.

Section 3719. Gross Violations of Human Rights.

Anyone who participated in the commission of the following types of acts will be inadmissible:

- Torture

- Extrajudicial killings

- War crimes

- Widespread attacks against civilian populations

- Persecution on political, racial, national, ethnic, cultural, religious or gender grounds

- Enforced disappearance of persons

- Other inhumane acts of a similar character.

The President may ignore the confidentiality requirements to make public information on people barred on one of these grounds.

Section by Section Summary of the Border Security, Economic Opportunity and Immigration Modernization Act – Title IV – Reforms to Non-Immigrant Visa Programs

By Greg Siskind – Siskind Susser, PC – Immigration Lawyers (gsiskind@visalaw.com)

Subtitle A – Employment-based Nonimmigrant Visas

Section 4101. Market-Based H-1B Visa Limits

Raises base level cap from 65,000 to 110,000 for the first fiscal year after the bill passes (which means October 1, 2013 if the bill is signed by the summer).

The H-1B cap will float between a floor of 110,000 and a cap of 180,000 based on a formula calculating market demand for H-1Bs and the unemployment rate. The number cannot go up or down more than 10,000 per year.

The bonus cap of 20,000 is increased to 25,000. However, it is now available only for those who earn a masters degree or higher from a US institution in a STEM field. Current rules don’t restrict the master’s cap applicants to STEM field.

Section 4102. Employment Authorization For Dependents of Employment-Based Non-Immigrants

H-4 spouses will be permitted to apply for work authorization IF the spouse is a national of a foreign country that permits reciprocal employment to spouses of those receiving work status similar to an H-1B in the spouse’s country.

Section 4103. Eliminating Impediments to Worker Mobility

USCIS is to provide deference in extension cases for H-1Bs and L-1s unless there is a material error, a substantial change in circumstances, new material information has been discovered or, in DHS’ discretion the extension should not be approved.

Laid off H-1Bs (or those terminated for any reason) get a 60 day grace period from the termination date. Applicants who then file a new H-1B petition will be deemed to have maintained status while that application is pending.

Visa revalidation marks its return after many years. Visas may be renewed within the US in the following NIV categories: A, E, G, H, I, L, N, O, P, R or W.

NIV interviews may be waived at the discretion of DOS for “low risk” applicants deemed not to pose a security threat, for whom no material benefit is seen in conducting the interview and for whom a background check has been conducted.

Section 4104. STEM Education and Training.

Permits the charging of a $500 fee for labor certifications and the money is to be used to fund STEM education and training. The various programs to be funded from the new tax are detailed. Only 3% of the fee will actually go to immigration adjudications.

Subtitle B – H-1B Visa Fraud and Abuse Protections

Chapter 1 – H-1B Employer Application Requirements

Section 4211. Modification of Application Requirements.

Mandates that H-1B dependent employers will pay wages that are not less than level 2 wages as set by DOL.

DOL would have to establish a new 3-tier wage system based on experience, education and supervision. Level 1 would be the mean of the lowest two-thirds of wages surveyed but no less than 80% of the mean of the wages surveyed.

Level 2 is the mean of wages surveyed.

Level 3 is the mean of the highest two-thirds of wages surveyed.

A new section on wages for H-2B employees is included. The wage must be the higher of the actual wage level paid by the employer or the prevailing wage based on the best available information. “Best available” means a controlling collective bargaining agreement, the wage commensurate with the experience, training and supervision needed based on BLS data or, if not available, a private, recent, legitimate wage survey.

A four level wage system remains for universities and related nonprofits to use for teaching and research positions.

Establishes a new advertising requirement for H-1Bs where employers must advertise on a DOL web site for at least 30 days a detailed description of each position including a description of the wages offered, the minimum education, training, experience and other requirements for the position and the process of applying for the application.

The 90 day look back/look forward non-displacement provision for US workers is extended to all employers and not just H-1B dependent employers, as is currently the case. The clause doesn’t apply if

an employer is not H-1B dependent and the number employed in the same O*NET job zone as an H-1B nonimmigrant has not decreased in the 1-year period ending on the date the labor condition application was filed.

The look back/forward provision expands to 180 days for dependent employers. Dependent employers must also now use the DOL web site to advertise a job

H-1B dependent employers may not “place, outsource, lease, or otherwise contract” for the services or placement of an H-1bB nonimmigrant employee. Non-H-1B dependent employers can do so if they pay a $500 fee.

The definition of H-1B dependent employer is changed. It now excludes nonprofit institutions of higher education, nonprofit research organizations, or an employer whose primary line of business is healthcare and who is petitioning for a physician, a nurse, physical therapist or a substantially equivalent healthcare occupation. Importantly, workers with pending green card applications don’t count in the H-1B dependent calculation (the “Facebook” provision). The rules only apply if an I-140 has been filed or, for labor certifications, if a labor certification has been pending for longer than a year or the employer has filed immigrant status petitions for 90% of the aliens for whom the employer filed an application for a labor certification during the period. Labor certifications pending for one year or more are considered the same as if an immigrant petition has been filed.

Section 4212. Requirements for Admission of Non-Immigrant Nurses in Health Professional Shortage Areas.

The H-1C returns but is now just 300 for the entire country. Portability is now available allowing H-1C nurses to move more easily between H-1C employers. A 45 day lay off grace period is now provided.

Within 60 days, DHS must determine if regulations are necessary. If not, the commencement date shall be the date of such determination.

Section 4213. New Application Requirements.

Bars employers from advertising that positions are available only to H-1Bs or F-1 OPTs or that such H-1Bs or F-1s will get priority or preference. Employers are not permitted to solely recruit individuals who are or will be H-1Bs or F-1 OPTs.

Non-educational/non-research employers employing more than 50 workers in the US, may not have more than 75% of the total number of workers in non-immigrant status (H-1Bs and L-1s) in FY 2015; 65% in FY 2016; 50% in any year thereafter. Intending immigrants (see section 4211) don’t count in the calculation. Employers covered in the calculation above must provide DHS an annual report with W-2 data for each H-1B employee from the prior year.

Section 4214. Application Review Requirements.

The LCA will now be available to the public via the DOL’s web site and not just in a public access file.

LCAs will now be reviewed at the outset not just for completeness but also for signs of fraud or misrepresentation.

The DOL will now get 14 days to review an application, up from the current 7. Between this requirement and the new 30 day advertising requirement, employers should be prepared for much longer turnaround times on H-1Bs.

H-1Bs may be submitted without an approved LCA, but may not be approved until the LCA is approved.

CHAPTER 2 – Investigation and Disposition of Complaints Against H-1B Employers

Section 4221. General Modification of Procedures for Investigation and Disposition.

Complaints regarding LCAs can now be filed within 24 months, up from the current 12 months.

DOL may now conduct voluntary surveys of employers to determine compliance. DOL shall also conduct annual audits of employers with more than 100 employees who work in the US if more than 15% of such employees are H-1B nonimmigrants and make available to the public an executive summary or report describing the findings of such audits.

Section 4222. Investigation, Working Conditions and Penalties.

Adds new fines for violating some of the new H-1B provisions (advertising a preference for H-1Bs, employing to high a percentage of H-1Bs, etc. Doubles the fine for smaller violations to $2000 per violation and doubles the fine for more serious ones from $5000 to $10,000 per violation. Employers are also liable to any employees harmed by such violations for lost wages and benefits.

Section 4223. Initiation of Investigations.

DOL no longer needs “reasonable cause” to launch an investigation. Anonymous complaints can now serve as the basis of an investigation and DOL employees can be the source of a complaint.

Section 4224. Information Sharing.

USCIS and DOL shall share information on H-1B violations with the DOL and the DOL may launch an investigation on information USCIS provides it.

Chapter 3 – Other Protections

Section 4231. Posting Available Positions Through the Department of Labor.

The DOL has 90 days to set up a free searchable website for posting H-1B positions.

Section 4232. H-1B Government Authority and Requirements.

Employers must provide employee beneficiaries a copy of all applications and petitions filed with DOL or USCIS filed on behalf of the employee. Financial or proprietary information may be redacted.

Section 4233. Requirements for Information for H-1B and L Nonimmigrants.

Consulates and DHS shall provide H-1B and L-1 employees a brochure outlining an employer’s obligations and an employee’s rights under the law as well as the contact information for government agencies that can assist in answering related questions.

Section 4234. Filing Fee for H-1B Dependent Employers

From FY 2015 to 2024, $5000 for applicant that employs 50+ workers in the US if 30-50% are on an H-1B or L-1.

From FY 2015 to 2017, $10,000 for applicant that employs 50+ workers in the US if 50-75% of its workers are on H-1B or L-1.

Universities and research organizations are exempt. Intending immigrants (see above) are not included in the calculation.

Section 4235. Providing Premium Processing of Employment-Based Visa Petitions

DHS shall establish premium processing for employment-based immigrant petitions (it already does for some; does this expand to all?) and for the first time requires the AAO set up premium processing.

Section 4236. Technical Correction.

Refers to amendment of Section 212 in regard to the “Irish Peace Process Cultural and Training Program Act of 1998.”

Section 4237. Application.

Clarifies that this subtitle only applies to cases filed on or after the date of enactment of the bill.

Subtitle C – L Visa Fraud and Abuse Protections

Section 4301. Prohibition on Outplacement of L Nonimmigrants.

No placing, outsourcing, leasing, or otherwise contracting for the services or placement of L-1 employees unless it is to an affiliate, parent or subsidiary of the petitioning employer. There is an exception as well if the L-1 won’t be supervised principally by the employer with the L-1 is placed or the placement is not “essentially an arrangement to provide labor for hire for the other employer.” Finally, the employer where the worker is placed must attest that the L-1 employer attests that the other employer has not displaced a US worker in the period 90 days before and after placement (note – the wording here appears to be incorrect and should be clarified).

L-1s coming to open new offices may be approved for up to 12 months but only if they have not been the beneficiary of 2 or more petitions to open offices within the prior two years and the employer has an adequate business plan, sufficient premises and adequate finances. New criteria is enumerated for extensions of new office L-1s. Notwithstanding these criteria, USCIS can extend if the employer “has been doing business at the new office through regular, systematic, and continuous” provision of goods and services for six months preceding the extension petition and there are extraordinary circumstances justifying not meeting the criteria.

Section 4303. Cooperation with Secretary of State.

USCIS and DOS are to work cooperatively to verify the existence of a company or office in the US or in a foreign country.

Section 4304. Limitation of Employment of L Nonimmigrants.

Brings dependency concept from the H-1Bs to the L-1 category. For companies with 50+ workers in the US, H-1B/L-1 totals may not exceed 75% in FY 2015; 65% in FY2016; and 50% from that year on. Nonprofit and university exception. Intending immigrants (see above) excluded from the calculation.

Section 4305. Filing Fee for L Nonimmigrants

From FY 2015 to 2024, $5000 for applicant that employs 50+ workers in the US if 30-50% are on an H-1B or L-1.

From FY 2015 to 2017, $10,000 for applicant that employs 50+ workers in the US if 50-75% of its workers are on H-1B or L-1.

Universities and research organizations are exempt. Intending immigrants (see above) are not included in the calculation.

Section 4306. Investigation and Disposition of Complaints Against L Nonimmigrant Employers.

DHS can investigate an employer’s compliance with the new requirements and can set up a complaint reporting system. No court review of a DHS investigation under this section. DHS has the power to fine under this section, conduct surveys to determine compliance and conduct annual audits of employers with 100+ employees in the US if more than 15% are on L-1s and such reports must be available to the public.

Section 4307. Penalties.

Fines may be up to $2000 per violation and employers can be debarred from filing L-1s for a year. Willful violators can face higher fines (up to $10,000 per violation) and a two year debarment as well as payment to harmed employees of lost wages and benefits.

Section 4308. Prohibition on Retaliation Against L Non-Immigrants.

Bars retaliation against current or past employee or an applicant for employment because the employee has disclosed information that the employee reasonably believes shows a violation of this section or cooperates or seeks to cooperate with the requirements of this section.

Section 4309. Reports on L Nonimmigrants.

Adds L-1 to the list of non-immigrant categories about which DHS must annually report to Congress.

Section 4310. Application.

The changes in this section only apply to cases filed on or after enactment of the law.

Section 4311. Report on L Blanket Petition Process.

Within 6 months of the date of enactment, the Inspector General of DHS must submit to Congress a report on the use of blanket petitions for L-1s including an assessment of the efficiency and reliability of the process and the whether there are sufficient safeguards against fraud and abuse.

Subtitle D – Other Nonimmigrant Visas

Section 4401. Nonimmigrant Visas for Students

F-1s coming for bachelor’s or graduate degrees will benefit from dual intent. Their spouses and children will be treated the same. Commuting Mexican and Canadian students are also dual intent.

DHS may require accreditation for purposes of F-1 sponsorship (religious institutions excepted).

People with certain criminal and immigration violations are barred from being involved with an F-1 sponsoring institution.

This section takes effect 180 days after the date of enactment.

Section 4402. Classification for Specialty Occupation Workers from Free Trade Countries.

Creates a new E-4 category for people from countries other than Chile, Singapore or Australia with which the US has entered in to a free trade agreement with respect to whom the DOL determines and certifies to DHS and DOS that the intending employer has filed with the DOL an attestation under Section 212(t). This is the LCA provision applicable to H-1B1s and E-3s. There is a cap of 5,000 per year (not applicable to spouses and children).

A new E-5 is available to South Koreans with whom the DOL determines and certifies to DHS and DOS that the intending employer has filed with the DOL an attestation under Section 212(t).

Section 4403. E Visa Reform.

For Irish nationals using an E-3, they must have at least a high school degree or, within 5 years, at least two years of work experience in a job requiring at least 2 years of training or experience.

Creates a new waiver for E visa applicants who were immigration violators before the enactment of this law.

Sets a cap of 10,500 for each of Ireland and Australia in the E-3 category.

Section 4404. Other Changes to Nonimmigrant Visas.

Adds portability to the O-1 visa category. Extends waiver of need for new consultation to those seeking readmission within 3 years from the date of a consultation (currently two years).

Section 4405. Treatment of Nonimmigrants During Adjudication of Application.

NIVs granted employment in these groupings (A, E, G, H, I, J, L, O, P, Q, R, TN) whose status has expired but whose employer or agent has filed a timely extension is authorized to continue employment until the petition is adjudicated. Currently limited to 240 days.

Section 4406. Nonimmigrant Elementary and Secondary School Students.

Ends 12 month limit on F-1 students attendance at elementary and secondary schools.

Subtitle E – JOLT Act

Section 4501. Short Titles.

This section incorporates the Jobs Originated through Launching Travel Act of 2013” or the “JOLT Act”.

Section 4502. Premium Processing.

DOS shall establish a pilot program to charge a fee-based premium processing amount to expedite interview appointments. DOS must report on the results within 18 months after the date of enactment.

Section 4503. Encouraging Canadian Tourism to the United States

DHS may admit Canadians in B-2 status for periods up to 240 days if the applicant is a Canadian citizen over 55 with a residence in Canada and owning a residence in the US or having signed a rental agreement for accommodations in the US for the duration of the intended stay. Applicants may not engage in work or apply for public benefits. Spouses are entitled to a derivative benefit if not independently eligible. Maintaining a residence in the US shall not be considered evidence of intent to abandon residence in Canada.

Section 4504. Retiree Visa.

A new Y visa is created for aliens who use at least $500,000 in cash to buy one or more residences in the US which each sold for more than 100% of the most recent appraised value as determined by the property assessor in the city or country where it is located. The Y visa holder must own property worth at least $500,000 during the entire period the person remains in the US and resides for more than 180 days per year in a residence in the US worth at least $250,000. Spouses and children may accompany the applicant. Applicants must be 55 or over and have health insurance coverage. Work is not authorized nor is access to any form of assistance or public benefit. The visa is valid in three year increments.

Section 4505. Incentives for Foreign Visitors Visiting the United States During Low Peak Seasons.

DOS shall publish data on availability of visa appointments for each processing post to allow people to better see periods of low demand and shorter wait times.

Section 4506. Visa Waiver Program Enhanced Security and Reform.

Gives more flexibility to DHS to designate Visa Waiver countries. If the percentage of overstays is less than 3% and the country uses machine-readable visas. The 3% rate can be waived if a country meets all the other requirements, there is a low security risk, there is a general downward trend in visa refusals and the country has consistently cooperated with the US in counterterrorism initiatives and extraditions and the overall visa denial rate is under 10%.

DHS can also now put a country in a probationary status.

Section 4507. Expediting Entry for Priority Visitors

Certain individuals employed by international organizations may be added to DHS registered traveler programs.

Section 4508. Visa Processing.

DOS shall require consulates to conduct visa interviews in an “expeditious” manner and set a processing goal of three weeks. For China and Brazil, the goal is 15 work days.

Section by Section Summary of the Border Security, Economic Opportunity and Immigration Modernization Act – Title IV, part 2 – H-2B visas, Guest Workers and Investor Visas

By Greg Siskind – Siskind Susser, PC – Immigration Lawyers (gsiskind@visalaw.com)

SUBTITLE F – Reforms to the H-2B Visa Program

Section 4601. Extension of Returning Working Exemption to H-2B Numerical Limitation.

From FY 2014 to FY 2018, H-2Bs counted toward the cap of 66,000 won’t be counted again against the cap if they return in one of those years.

Ski instructors are added to the list of P visa occupations, but they can still qualify as H-2Bs. This provision shall take effect immediately upon passage of the bill.

Section 4602. Other Requirements for H-2B Employers. [ADDS BUSINESS VISITOR RULES AS WELL]

Adds a new non-displacement requirement to the H-2B program that is similar to the H-1B one. Employers must attest that they did not and will not displace US workers within the same metropolitan statistical area within the period beginning 90 days before the state date and ending on the end date for which the employer is seeking H-2B workers.

Employers are responsible for paying transportation costs for H-2B workers from the place recruited to the place of employment and from the place of employment home.

All fees must be paid by the employer and may not be deducted from the wages paid to an H-2B non-immigrant.

DOL is authorized to charge a $500 fee for its part of the process.

Rules for executives and managers are put in this section even though this has nothing to do with H-2Bs.

Executives and managers employed by a company who are principally stationed abroad for periods of 90 days or less to oversee and observe the US operations of their related companies and establish strategic objectives when needed or employees of multinational companies who enter the US to observe the operations of a related US company and participate in selecting leadership and development training activities, for a period less than 180 days may be admitted as a non-immigrant to engage in these activities as long as they do not receive a salary from a US source, except for incidental expenses for meals, travel, lodging and other basic services.

B visa holders may accept honorarium payments and associated incidental expenses for usual academic activities or for a performance, appearance and participation in US based programming, including scripted or unscripted programming (with services not rendered for more than 60 days in a six month period) if the alien has received a letter of invitation from the institution, organization, or media outlet, such payment is offered by a qualified organization (see below) and is made for services conducted for the benefit of that organization. The alien may not have accepted such payment or expenses from more than five such organizations in the previous six month period.

Applicants qualifying under this provision may enter in B status or any other valid visa without reentering the US and without a letter of invitation, if the person does not receive any pay, but may receive prize money.

Qualified institutions, organizations, or media outlets include institutions of higher education, nonprofit research organizations, governmental research organizations, and broadcast networks, cable entities, production companies, new media, Internet and mobile based companies who distribute programming content.

Section 4603. Nonimmigrants Participating in Relief Operations.

Individuals and groups coming to participate in critical infrastructure repairs or improvements in response to a Federal or State declared emergency or disaster. Admissions may be up to 90 days if the applicant has been employed in a foreign country by 1 employer for not less than 1 year prior to the date the person is admitted. The person may not be paid from a US source except for incidental expenses.

Section 4604. Nonimmigrants Performing Maintenance on Common Carriers.

A new Z visa is created for people with specialized knowledge coming individually or as part of a group to perform maintenance for common carriers, including to airlines, cruise lines and railways if the equipment was manufactured outside the US and are needed for purposes related to life, health and safety , may be admitted for up to 90 days if the person has been employed in a foreign country by one employer for not less than one year from the date the person is admitted. Pay must come from a source outside the US except for incidental expenses. The visa will come with a $500 fee.

Subtitle G – W Nonimmigrant Visas

Section 4701. Bureau of Immigration and Labor Market Research

Definitions-

- Bureau – the Bureau of Immigration and Labor Market Research

- Commissioner – Commissioner of the Bureau

- Construction Occupation – defined by BLS within the construction industry

- Metropolitan Statistical Area – geographic area designated as a MSA by OMB

- Shortage Occupation – an occupation that the Commissioner determines is experiencing a shortage of labor throughout the US or in a specific MSA.

- W Visa Program – the program for the admission of guest workers

- Zone 1 Occupation – a job requiring little preparation and is classified as zone 1 by the DOL’s O*NET database

- Zone 2 Occupation - a job requiring some preparation and is classified as zone 2 by the DOL’s O*NET database

- Zone 3 Occupation - a job requiring medium preparation and is classified as zone 3 by the DOL’s O*NET database

The Bureau is to be created as an independent statistical agency within USCIS. The Commissioner of the Bureau is to be appointed by the President with the consent of the Senate. The Commissioner is charged with devising a methodology to determine the numerical limit for W-1 NIVS as well as the annual change in numerical limits. The Commissioner may supplement the recruitment methods employers may use to attract W nonimmigrants, to deveise a methodology to designate shortage occupations, to conduct surveys of the unemployment rate in Zone 1, 2 and 3 occupations that are construction occupations in each MSA and to report to Congress on employment-based IV and NIV programs.

The Commission’s methodology for determining the W visa cap and for determining shortage occupations will be published within 18 months of passage of the bill. Regarding shortage occupations, the methodology will allow for an employer to petition for a determination that a particular occupation in an MSA is a shortage occupation.

The employees of the Bureau shall have the expertise to identify labor shortages and make recommendations. The Bureau will cooperate with the Census Bureau, the Dept. of Commerce, DOL, and BLS.

Section 4702. Nonimmigrant Classification for W Nonimmigrants

Creates a new W visa for aliens having a foreign residence who come to the US to perform services or labor for a registered employer in a registered position. The spouse or children of a W nonimmigrant may be allowed to accompany or follow to join the W visa holder.

Section 4703. Admission of W Nonimmigrant Workers.

Defines various terms.

Ws are eligible to be admitted to the US if they are hired by a registered employer in a registered position in a location that is not an excluded geographic location.

Spouses and minor children can come as derivatives and engage in employment while here.

Ws shall apply for a visa at a consulate. To be eligible, the applicant must not be inadmissible, pass a criminal background check , agree to accept only registered positions in the US and meet other criteria set by DHS.

The W worker must show up for work within 14 days of entering the US. The term of admission is three years. Renewals within the US are permitted for up to three years at a time.

Ws can be unemployed for up to 60 days and then have to leave if they have not found a qualifying position.

Ws are authorized to travel in and out of the US during their W visa term.

Employers seeking W workers must submit an application to register with DHS. Documentation included must show the employer is a real employer, the FEIN and the number of W workers sought.

DHS may refer cases for fraud investigation. Employers may be barred from applying if they are engaged in fraud or misrepresentations or committed various infractures. Ineligibility can continue for up to three years.

A registered employer may submit a position as a registered position. It shall include an attestation setting out the number of employees, offered wages, and whether the sought position is in a shortage occupation. The employer has to engage in minimum recruiting.

SUBTITLE H – Investing in New Venture, Entrepreneurial Startups and Technologies.

Section 4801. Nonimmigrant Invest Visas

Creates a new X visa for qualified entrepreneurs who have demonstrated during the 3 year period prior to filing the application that

- A qualified venture capitalist, super angel investor, government entity, community development financial institution or other type of investors approved by USCIS has devoted at least $100,000 to the applicant’s US business entity, or

- The US business entity has created no fewer than 3 qualified jobs and during the 2 year period prior to filing has generated not less than $250,000 in annual revenue.

Valid for initial 3 year period. May be renewed for additional 3 year periods if during the most recent 3 year period the applicant’s US business created no fewer than 3 qualified jobs and a venture capitalist, super angel investor, government entity, community development financial institution or other type of investors approved by USCIS has devoted at least $250,000 to the applicant’s US business entity or the US business entity has created no fewer than 3 qualified jobs and during the 2 year period prior to filing has generated not less than $200,000 in annual revenue.

USCIS can waive the above renewal requirement is USCIS finds the applicant has made substantial progress in meeting the above criteria and the renewal is economically beneficial to the US.

Section 4802. INVEST Immigrant Visa.

Contains definitions of “Qualified Community Development Financial Institution”, “Qualified Entrepreneur”, “Qualified Government Entity”, “Qualified Investment”, “Qualified Job”, “Qualified Super Angel Investor”, “Qualified Venture Capitalist”, Senior Executive Position” and “United States Business Entity”.

10,000 INVEST green cards available per year.

Eligibility –

1. The applicant is a qualified entrepreneur

2. The applicant maintained a valid nonimmigrant status in the US for at least 2 years

3. During the 3 year period prior to filing,

a) the applicant has a significant ownership in a US business that has created no fewer than 5 qualified jobs and

b) A qualified venture capitalist, super angel investor, government entity, community development financial institution or other type of investors approved by USCIS has devoted at least $500,000 to the applicant’s US business entity, or

The US business entity has created no fewer than 5 qualified jobs and during the 2 year period prior to filing has generated not less than $750,000 in annual revenue.

Limit of 2 immigrant investors per business entity.

Alternate basis of eligibility.

1. The applicant is a qualified entrepreneur.

2. The applicant maintained a valid nonimmigrant status in the US for at least 3 years

3. The applicant has an advanced degree in a STEM field

4. During the 3 year period prior to filing the green card application,

a) the applicant has a significant ownership in a US business that has created no fewer than 4 qualified jobs and

b) A qualified venture capitalist, super angel investor, government entity, community development financial institution or other type of investors approved by USCIS has devoted at least $500,000 to the applicant’s US business entity, or

The US business entity has created no fewer than 3 qualified jobs and during the 2 year period prior to filing has generated not less than $500,000 in annual revenue.

Limit of 3 immigrant investors per business entity.

Section 4803. Administration and Oversight.

Regulations must be issued not later than 16 months after enactment. Regulations can be issued from time to time increasing each dollar amount above to account for inflation or deflation.