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H.R.
3142
Rep. Cannon and Rep. Berman
View
all co-sponsors
S.
1645
Sen. Craig
and Sen. Kennedy
View
all co-sponsors
|
|
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Enforcement
Measures to Prevent Future Illegal Immigration
|
| Border
security provisions |
None |
None |
None |
| Interior
enforcement provisions |
None |
Requires
establishment of a toll-free, electronic employment eligibility
verification system, but only employers of H-4A and H-4B
workers have to use it to verify the status of those temporary
workers; all employers can continue to hire illegal aliens
without using the verification system |
-
Requires DHS to establish a database to monitor the entry
into and exit from the U.S. of all W workers, to track
employer compliance with the program, and to store past
employment records of W workers to facilitate the return
of the worker to the same employer each year
- Only W visa holders must be monitored, however
- Increases the civil sanctions for hiring illegal aliens
more than one year after enactment
|
|
Temporary
Workers
|
| Temporary
worker programs created or modified |
-
Creates a new category of "temporary resident status"
for agricultural workers
- Amends the H-2A temporary agricultural worker program
|
-
Creates a new category of H-4A temporary workers from
abroad
- Creates a new category of H-4B temporary workers who
are here illegally
|
Creates
a new W nonimmigrant category for temporary workers |
| Numerical
limits on new temporary workers |
None |
None |
None |
| Wage
protections |
There
are no wage requirements for aliens granted "temporary
resident status," so only minimum wage laws apply |
Only
minimum wage laws apply |
Only
minimum wage laws apply |
| Admission
criteria for temp. workers |
Alien
must have worked in agriculture in the U.S. the lesser of
575 hours or 100 work days* between March 1, 2002 and August
31, 2003
*a "work day" is any day in which the alien is
employed one or more hours
|
1)
H-4A workers
- must have a prospective employer file a petition on their
behalf
- must submit to a medical exam to ensure they are not inadmissible
on health-related grounds
- must be otherwise admissible to the U.S.
(2) H-4B workers
- must have been present illegally in the U.S. before August
1, 2003
- must show that they are not subject to the two-year foreign
residence requirement if they originally entered as exchange
visitors
- must not be inadmissible on criminal, national security
or public charge grounds
- must not have been convicted of a crime in the U.S., except
for crimes related to illegal entry or presence or immigration-related
document fraud
- must not have assisted in the violation of human rights
- must establish that they have been employed in the U.S.
since before August 1, 2003 or are the spouse or child of
an alien employed since then
- Any alien who enters the U.S. unlawfully after August
1, 2003 is ineligible for H-4A status until three years
after departure or removal from the U.S.
|
(1)
Alien must be at least 18 years of age;
(2) Alien may not have been convicted of a felony or three
or more misdemeanors committed in the U.S.;
(3) Alien may not have been
present unlawfully in the U.S., unless such alien applies
for a W visa within one year after enactment and is otherwise
admissible
(4) Aliens working illegally in the U.S. on the date of
enactment must show evidence that they were present in the
U.S. on the date of enactment and are employed on the date
on which they register for a W visa
|
| Waivers
of Inadmissibility |
(1)
The following grounds of inadmissibility in §212(a)
of the Immigration and Nationality Act (INA) do not apply
to aliens applying for temporary status:
- (5) relating to labor certification and qualifications;
- (6)(A) relating to illegal entry;
-(7)(A) relating to lack of valid documents; and
- (9)(B) relating to the 3 year/10 year bars on reentry
after illegal residence
(2) DHS may not waive the following provisions in §212(a)
of the INA
- (2)(A) relating to crimes involving moral turpitude or
controlled substances;
- (2)(B) relating to multiple criminal convictions resulting
in an aggregate sentence of five years or more;
- (2)(C) relating to drug offenses;
- (3) relating to national security; and
- (4) relating to becoming a public charge
(3) Alien may overcome public charge inadmissibility by
showing that he has a history of working in the U.S. (legally
or illegally) without accepting public cash assistance
(4) DHS can waive any other ground of inadmissibilityfor
"humanitarian purposes, or when it is otherwise in
the public interest"
|
(1)
No waivers for H-4A workers
(2) All grounds of inadmissibility in §212(a) of the
INA are to be waived for H-4B workers except:
- (2) relating to criminal activity;
- (3) relating to national security; and
- (4) relating to becoming a public charge
|
None |
| Application
period |
Begins
on the first day of the seventh month after the date of
enactment and ends 18 months later |
No
limit |
(1)
No limit for W workers applying from abroad
(2) Illegal aliens must apply within one year of enactment |
| Application
process for temp. workers |
-
Alien living in the U.S. may apply directly to DHS if represented
by counsel or to a designated entity
- Alien living abroad may apply to a State Department consular
office
- DHS can grant "preliminary" temporary admission
and work authorization to any alien at a port of entry on
the U.S.-Mexico border (but not the U.S.-Canada border)
who presents an application and supporting documents that
appear "credible"
- After date of enactment, aliens who can establish a "nonfrivolous"
case for eligibility for temporary status
cannot be removed and must be granted work authorization
valid until 30 days into the application period listed above
- Aliens apprehended during the application period can file
an application for temporary status within 30 days of apprehension
and may not be removed and must be granted work authorization
until a final decision on the application is made
|
-
Prospective employer must file petition on worker's behalf
- DHS is required to establish a process through which an
alien subject to a final order of deportation may file an
application for H-4B status and be permitted to remain in
the U.S.
- such an alien cannot be removed until a final determination
on the application has been made
- Approved H-4A and H-4B workers are to be issued machine-readable,
biometric visas
|
-
Prospective employer must file a petition on worker's behalf
and obtain a labor attestation from the Department of Labor
- Eligible workers must be enrolled under a process established
in their home country
|
| Fees |
-
DHS is required to establish a schedule of fees to be charged
to aliens applying for temporary status and for amnesty,
and fees to be charged to aliens by the designated entities
authorized to assist aliens with the applications
- All fees are to be used for processing applications for
temporary status and for amnesty
|
(1)
H-4A employers employing more than 500 employees must pay
$1,000 for each petition
- H-4A employers employing 500 or fewer employees must pay
$500 for each petition
- DHS is required to set fee for H-4A workers based on actual
cost of processing the application
- No fee may be charged for an extension of an H-4A visa
(2) DHS is required to set a fee for H-4B workers to cover
the cost of processing
- H-4B workers also must pay a fine of $1,500, which may
be garnished from wages if the worker does not have it
|
No
provisions included
|
| Legal
assistance for applicants |
Federal
funds provided by the Legal Services Corporation Act may
be used to assist aliens applying for temporary status or
amnesty |
No
provisions included |
No
provisions included |
| Period
of authorized admission |
New
"temporary resident status remains valid until alien
applies for amnesty or until status is terminated because
alien is found deportable |
(1)
H-4A visas are valid for an initial period of three years
and are renewable once, but employer must re-advertise
the job in the electronic job registry (see Duties of
employers, below) before a renewal is granted
(2) H-4B visas are valid for an initial, nonrenewable
period of three years; after three years, the alien may
adjust to H-4A status or leave the country
|
(1)
Seasonal W workers may be admitted for up to 270 days in
any calendar year, but may reapply in any subsequent year
(2) Nonseasonal W workers may be admitted for up to 12 months,
and may have their visa extended for additional 12-month
periods up to three years, unless the alien returns to the
home country for at least six months before returning to
the U.S. |
| Admission
of families of temp. workers |
Spouse
and minor children cannot be removed while the principal
alien has temporary status, but they are not eligible for
work authorization unless they qualify under another provision
of law |
(1)
Spouses, parents and children (minor and adult) of H-4A
workers are not permitted to accompany the worker (unless
they qualify for a visa on their own merits), but are to
be given priority for visitor visas
- Except that children may accompany the worker if the worker
is the sole custodial parent or both parents are H-4A workers;
and
- Except that spouses and children of H-4A workers who initially
were H-4B workers are eligible for H-4A status if the worker
is the only alien among them authorized to be employed in
the U.S.
(2) Spouses and children of H-4B workers are to be given
the same temporary status as the worker
|
Spouses
and minor children of W workers may accompany the worker
to the U.S. if the worker has a level of income equal to
at least 125 percent of the Federal Poverty line |
| Duties
of employers under new program/ penalties for noncompliance |
-
Employer must provide alien and DHS with a written record
of employment each year until August 31, 2009
- Penalty for noncompliance is a civil fine up to $1,000
|
-
Employer must advertise the job opportunity for which he
seeks an H-4A worker (but not an H-4B worker) on an electronic
job registry for at least 14 days; offered the job to any
qualified, available U.S. worker; and sought an alien worker
only through the job registry after the 14-day period
- Employer must pay required petitioning fees
- penalty for seeking reimbursement of fees from alien is
civil fine up to $10,000 per violation
- Employer must attest that he:
- has used the electronic job registry to try to recruit
U.S. workers for the job;
- will verify the alien's identity and work authorization;
- will provide the same benefits, wages and conditions to
the alien as to other similarly employed workers, and require
the same work hours;
- will not forbid the alien from working for a competitor;
- did not and will not displace a U.S. worker within 90
days before and after seeking an H-4A;
- will comply with all labor laws
- penalty for noncompliance is civil fine up to $10,000
per violation
- Employer must use the electronic employment eligibility
verification system to verify that all H-4A and H-4B workers
he hires are legally authorized to work in the U.S.
- penalty for noncompliance is civil fine up to $5,000 per
violation
- Employer must pay for transportation to home country of
H-4A worker who is dismissed without cause
- penalty for noncompliance is reimbursement of transportation
cost and civil fine up to $5,000
|
-
Employer must file an application for each W worker containing:
- for a nonseasonal worker, a request for an attestation
from Labor that no qualified U.S. workers are available
and that W workers will not adversely affect wages or
working conditions; a job offer describing the period
of employment, skills required and wages to be paid; attestations
that the employer has offered or will offer the job to
any qualified U.S. worker, has advertised the job in the
local market for at least 14 days, will pay at least minimum
wage, will provide insurance if workers' comp does not
cover the job, and will comply with vehicle safety laws
- penalty for noncompliance is same as for U.S. workers
plus ineligibility for W workers for up to 10 years
- Employers who participate in the W worker program will
be absolved of all liability for past hiring of illegals
|
| Rights
of temp. workers/penalties for non-compliance |
-
Any fake or stolen Social Security numbers are to be corrected
and any deposits credited to the alien
- Alien can only be terminated for cause or contract impossibility
- Alien may travel abroad and reenter the U.S. at will
- Alien who knowingly or willfully makes false statements
or misrepresentations in an application for temporary status
is subject to a fine and up to five years imprisonment,
and is inadmissible to the U.S.
|
-
H-4A may seek a different job than that for which he was
admitted and may remain in the U.S. if the new employer
files a petition on his behalf within 45 days of termination
and the alien has not worked without authorization
- An H-4A worker who violates any term or condition of his
status is permanently ineligible for H-4A status
- Alien may travel abroad and reenter the U.S. at will
|
-
Illegal aliens and visa overstayers who participate in the
program are to be absolved of all liability for past illegal
behavior pertaining to their immigration status
- W workers may travel abroad and reenter the U.S. at will
- 100 percent of W workers' Social Security contributions
are to be deposited into a guest worker investment account
for each W worker
- each W worker is to receive annually a report on the
amount deposited into his investment account
- the funds in the account are to be transferred to the
worker after he permanently leaves the W worker program
and returns to his home country |
| Termination
of temporary status |
During
the period of authorized stay, temporary status may be terminated
only if the alien is found to be deportable |
-
H-4A status terminates if the alien is unemployed for 45
or more consecutive days, or if the alien fails to apply
for amnesty after six years
- H-4B status terminates after three years if the alien
fails to apply for adjustment to H-4A status
|
No
provisions included |
|
Amnesty\New
Permanent Residents
|
| Numerical
limits on aliens to be awarded amnesty |
None |
None |
DHS
may set the annual number of aliens to be awarded amnesty
based on "economic determinations made by the Secretary
of Labor and the number of participants" in the W visa
program |
| Numerical
limits on new temporary workers to receive permanent residence |
None |
None |
DHS
may set the annual number of new temporary worker aliens
to be awarded legal permanent residence based on "economic
determinations made by the Secretary of Labor and the number
of participants" in the W visa program |
| Estimated
number of aliens to be awarded amnesty |
Of
the 1.2 million illegal aliens currently working in agriculture,
an estimated 860,000* plus their spouse and children could
qualify for amnesty
*estimates by Dr. Philip Martin, University of California,
Davis
|
Of
the estimated 9-11 million* illegal aliens currently residing
in the U.S., somewhere around three-fourths would qualify
for amnesty between six and nine years after the provisions
of the bill were implemented.
*based on Census Bureau estimates
|
Of
the estimated 9-11 million* illegal aliens currently residing
in the U.S., somewhere around three-fourths would qualify
for bonus points toward amnesty after working on W visas
for three years.
*based on Census Bureau estimates |
| Estimated
number of new temporary workers to receive legal residence |
None
|
Since
there is no limit on the number of new foreign workers who
can apply for permanent residence after spending three years
as H-4A workers, it is impossible to estimate the total
number of new temporary workers who would receive permanent
residence under this bill.
|
Since there is no set limit on the number of new foreign
workers who could apply for permanent residence after spending
three years as W workers, it is impossible to estimate the
total number of new temporary workers who would receive
permanent residence under this bill. |
| Qualifications
for amnesty |
(1)
Alien must have worked in agriculture the lesser of 2,060
hours or 360 work days* between September 1, 2003 and August
31, 2009
(2) Alien must have worked in agriculture the lesser of
430 hours or 75 work days* in at least each of three non-overlapping
periods of 12 consecutive months between September 1, 2003
and August 31, 2009
(3) Alien must have worked in agriculture the lesser of
1,380 hours or 240 work days* between September 1, 2003
and August 31, 2006
(4) Alien must prove (1)-(3) above, by a preponderance of
evidence, with employer-provided records, government employment
records, or other "reliable documents"
- qualifying hours/work days* may include work performed
under an assumed name
*a "work day" is any day in which the alien is
employed one or more hours
|
(1)
Alien must have H-4A status;
(2) Either the alien's employer may file a petition on his
behalf at any time after he is granted H-4A status, or the
alien may self-petition after at least three years in H-4A
status
|
If
the alien has worked as a W nonimmigrant in the U.S. continuously
for three years and returns to the home country to apply
for amnesty;
- The alien will be given priority for lawful permanent
resident status based on whether he has an employer sponsor,
whether he received promotions or raises while in the U.S.,
whether he paid taxes, how well he speaks English, his education
level, and whether he has avoided criminal activity
|
| Waivers
of inadmissibility |
Same
as for applicants for temporary resident status (see page
2 above) |
-
For H-4A workers who originally were H-4B workers, the following
grounds of inadmissibility in §212(a) of the INA are
to be waived:
- (6)(A) relating to illegal entry;
- (6)(B) relating to failure to attend an immigration proceeding;
- (6)(C) relating to misrepresentation;
- (7)(A) relating to lack of valid documents; and
- (9)(B) relating to the 3 year/10 year bar on reentry after
illegal residence
|
None |
| Application
period |
Alien
must apply for amnesty by August 31, 2010 |
(1)
H-4A workers must apply for amnesty within six years, or
they must return to their home country
(2) H-4B workers must adjust to H-4A status or leave after
three years, and then must apply for amnesty within six
years of receiving H-4A status
|
No
limit |
| Denial
of amnesty application |
-
If an alien meets the qualifications listed above, DHS may
deny amnesty and terminate temporary status if:
(1) Alien received temporary status as a result of fraud
or willful misrepresentation; or
(2) Alien commits an act that makes him inadmissible on
a ground that cannot be waived; or
(3) Alien is convicted of a felony or three misdemeanors
in the U.S.
- If an alien fails to apply for amnesty by the deadline
or fails to meet the qualifications, he becomes deportable
|
No
separate provisions for denial of amnesty are included |
No
separate provisions for denial of amnesty are included |
| Amnesty
for family members |
Spouse
and any children who were minors when the alien first was
granted temporary status are to be awarded amnesty upon
application or if they are included in the principal alien's
application |
No
provisions included
- Since H-4A workers approved for amnesty are to be given
employment-based lawful permanent resident status, spouses
and children would be granted lawful permanent residence
as ac-companying family members
- Spouses and children of H-4B workers are permitted to
adjust to H-4A status when the worker does, so they would
be eligible for amnesty on the same basis as the worker
|
Since
the spouses and children of W workers get derivative W status,
they would be eligible for amnesty on the same grounds as
the workers |
|
Miscellaneous
Provisions
|
| Administrative
and judicial review |
-
DHS must create a single level of administrative appellate
review of final determinations
- Judicial review is limited to review of a removal order
|
No
provisions included |
No
provisions included |
| Federal
funding for programs |
$40,000,000
each year from 2004 through 2007 is authorized to carry
out the new temporary resident program and the amnesty |
Such
sums as are necessary to permit the United States Employment
Service to assist State public employment services meet
increased demand resulting from this bill are authorized |
No
additional funding is provided, though some current funding
is diverted to the United States Employment Service |
| Other |
Amends
the existing H-2A program: eliminates requirements that
employers attest that there are not sufficient U.S. workers
available and that importation of workers will not depress
wages; permits employers to place H-2A workers with other
employers; permits employers to provide a housing allowance
instead of providing actual housing; requires employers
to reimburse certain aliens for initial transportation to
the workplace and to their home or next job after the work
is finished; requires the employer to provide transportation
between work and living quarters; freezes the adverse effect
wage level for three years from that in effect on January
1, 2003 and permits increases based only on the Consumer
Price Index thereafter; requires employer to provide each
pay period a statement of hours, earnings and deductions;
requires employers to guarantee H-2A workers the hourly
equivalent of at least 3/4 of the work days of the total
period of employment; extends the time an H-2A worker may
remain in the United States to three years |
-
Requires the Department of Labor (or a designee) to establish
an internet-based electronic job registry on which employers
can advertise job opportunities
- registry must circulate job opportunities through the
interstate employment service system and furnish them to
State public employment services
|
-
Requires foreign nations that wish their nationals to be
eligible for W visas to enter into an agreement with the
U.S. under which the foreign nation agrees to determine
eligibility of nationals to participate, establish a procedure
for enrollment of eligible workers in the program, train
such workers, establish procedures for providing health
care, monitor and share travel data regarding such workers
with the U.S., and accept the return of the workers from
the U.S. |
