Immigration Reform

The Bush Administration/ Congressional Proposals / Resources / Immigration Reform Bills / The Immigration Reform Act of 2004 /
The Border Security and Immigration Improvement Act / The Unity, Security, Accountability And Family Act /
Temporary Agricultural Work Reform Act Of 2004

The Bush Administration

On January 7, 2004, President Bush revived a long-dormant proposal to reform US immigration law.  He has proposed a temporary worker program “to match willing foreign workers with willing U.S. employers when no Americans can be found to fill the jobs.”  The program would be open to unauthorized immigrants currently working in the United States, and to new foreign workers.  The program would be open to all sectors of employment.  As proposed, visas would be available for a 3-year period and be renewable, but workers would be required to return to their country of origin once their period of work has concluded.  Temporary workers would be eligible to apply for permanent status if they qualify under the current system.  Approximately 8 million unauthorized immigrants currently reside in the United States and could be affected by this proposal.

Congressional Proposals

Agricultural Job Opportunity, Benefits, and Security Act of 2003 (the AgJobs bill), H.R. 3142 (introduced by Congressman Cannon with 110 cosponsors) and S.1645 (introduced by Senator Craig with 62 cosponsors).  These bills would allow certain unauthorized agricultural workers to adjust to lawfully admitted temporary nonimmigrant and permanent resident nonimmigrant. 

The Safe, Orderly Legal Visas and Enforcement (SOLVE) Act of 2004, S. 2381 and H.R. 4262.  On May 4, 2004 Senator Kennedy and Representative Gutierrez introduced comprehensive immigration reform legislation in the form of the SOLVE Act.  This legislation would allow certain unauthorized immigrants to adjust to legal status; address the backlog by easing numerical limitation requirements; create the H-1D temporary worker program; and establish a variety of protections for immigrant workers. 

The Immigration Reform Act of 2004: Strengthening America’s National Security, Economy, and Families, S. 2010.   On January 21, Senators Hagel and Daschle introduced legislation that funds increased border security and criminal and background checks on visa applications; increases visas for family reunification and addresses processing backlogs; tracks foreign workers in the US; and penalizes those who continue to break immigration laws.  Undocumented workers and their families in the U.S. can apply if they pass national security and background checks; have 5 years residence in the U.S., have worked 4 years in the U.S.; have paid federal taxes; demonstrate knowledge of English and civics; and pay a $1000 fine. 

The Unity, Security, Accountability and Family Act (USA Family Act), H.R. 440.   Representatives Pelosi, Menendez, and Gutierrez unveiled their bill on January 28, 2004.  The legislation proposes to legalize undocumented immigrants who have resided in the US for at least 5 years, and to provide conditional legalization for immigrants who have resided in the US for less than 5 years. The applicant’s immediate family are eligible for the same relief (permanent or conditional status).  It also eliminates the 3-year waiting period for spouses and children of permanent residents temporarily waiting for visa numbers (the V visa).  The bill has 21 cosponsors.

Border Security and Immigration Improvement Act, H.R. 2899 (sponsored by Congressmen Kolbe with 7 cosponsors) and S.1461 (sponsored by Senator McCain with 1 cosponsor).    These bills would establish new visa programs for unauthorized immigrants residing in the United States and for those seeking to enter the United States as temporary workers (new nonimmigrant visas H-4A and H-4B).

Border Security and Immigration Reform Act, S.1387 (introduced by Senator Cornyn).  The bill would establish a guest worker program for seasonal and nonseasonal work (a new nonimmigrant W-1 and W-2 visa, respectively.)  Temporary workers with 3 years in the program could adjust to permanent resident status. 

Resources

The Urban Institute

Undocumented Immigrants: Facts and Figures (http://www.urban.org/url.cfm?ID=1000587), just released by the nonpartisan Urban Institute's Immigration Studies Program, pulls together key information for analyzing and understanding this front-page topic.  (January 12, 2004).  For more Urban Institute research on immigration go to http://urban.org/r/immigration.cfm.

Federal Government

White House

Fact Sheet: Fair and Secure Immigration Reform

http://www.whitehouse.gov/news/releases/2004/01/20040107-1.html

President Bush’s Remarks announcing the new temporary worker program:

http://www.whitehouse.gov/news/releases/2004/01/20040107-3.html

Congressional bills: http://thomas.loc.gov

US Citizenship and Immigration Services website:  http://uscis.gov

 “Estimates of the Unauthorized Immigrant Population Residing in the United States:  1990-2000” (January 2003) provides a chart of the unauthorized immigrant population by state of residence and country of origin. http://uscis.gov/graphics/shared/aboutus/statistics/Ill_Report_1211.pdf

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Immigration Reform Bills in Congress

Congress is considering a number of proposals to address the high number of illegal immigrants residing in the United States (currently estimated at 8-12 million).  The AgJobs bill, with the highest number of cosponsors, would establish a path to legalization for unauthorized agricultural workers.  Legislative summaries of some of the main immigration reform bills follow.

The Agricultural Job Opportunity, Benefits, And Security Act Of 2003

Known as the AgJobs bill, this legislation would allow certain unauthorized agricultural workers to adjust to lawfully admitted temporary nonimmigrant and permanent resident nonimmigrant. Introduced by Congressman Cannon, H.R.3142 has 110 cosponsors; S.1645 was introduced by Senator Craig, and now has 62 cosponsors. 

Reforming the Temporary Agricultural Worker Program (H-2A visa)

• Streamlines the application process
• Employers may not favor guestworkers over U.S. workers
• Employers must pay the highest of the state or federal minimum wage, the local “prevailing wage” or an Adverse Effect Wage Rate (AEWR), an H-2A minimum wage rate. The AEWR will stay at its 2002 level for 3 years while Congress considers whether the AEWR formula should change
• Employers must offer free housing; or they may provide a housing allowance
• New transportation safety requirements apply
• H-2A workers would be allowed to sue in federal court (not just local and state courts) in order to enforce worker rights

Earned Adjustment Program

Agricultural workers who lack permanent immigrant status could adjust their status in a two-step process. The adjustment period lasts 18 months, beginning 6 months after enactment.

The worker first files for temporary resident status and proves that he or she has worked at least 100 days of agricultural work in the U.S. during any 12 month period between February 2002-August 2003. Once granted temporary resident status, the worker will have work authorization and be treated like a lawful immigrant.  The farmworker’s spouse and minor children may reside in the U.S. but are now allowed to work.

Once a worker has been granted temporary resident status, permanent residency for the farmworker and family members can be obtained by fulfilling agricultural work requirements, including working at least 360 work days during a six-year period, ending on August 31, 2009.

The Safe, Orderly Legal Visas and Enforcement (SOLVE) Act of 2004

The SOLVE Act is comprehensive immigration reform legislation that would allow certain unauthorized immigrants to adjust to legal permanent resident status, expand the definition of “immediate relative” and increase the annual number of visas allocated to this group, create a temporary worker program, and implement a variety of protections to immigrant workers.  This legislation was introduced on May 4, 2004 by Senator Kennedy (S. 2381), and Congressman Gutierrez (H.R. 4262).  It currently has 2 cosponsors in the Senate, and 36 cosponsors in the House. 

Earned Adjustment Program

• Unauthorized immigrants that have continuously resided in the country for the five years previous to the law’s enactment would be allowed to adjust their status to legal permanent resident. 
• Immigrants filing for an adjustment of status would have to provide proof of employment for at least two of the five years immediately preceding the law’s introduction, show that they have paid all taxes owed for employment during those two years, demonstrate basic citizenship skills, and be subject to a background check/security clearance. 
• Spouses and children of immigrants eligible for adjustment would also be allowed to adjust their status.
• Immigrants adjusting their status would not be counted against quota limits. 

Family Reunification

• Would change the definition of “immediate relative” in the INA to include spouses and minor children of legal permanent residents and would increase the number of available immigrant visas among the remaining categories. 
• Family-sponsored immigrants waiting for five years for a visa would no longer be subject to numerical limitations. 
• Unused visas allocated to family-sponsored immigrants and employment-based immigrants would be recaptured and made available without regard to per-country limitations. 
• Delays caused by security clearances would not result in the forfeiture of an immigrant visa that would otherwise be made available or issued to an eligible immigrant.

Temporary Worker Program

• Changes the definition of H-2B workers to mean nonimmigrant workers coming to the U.S. for temporary, short-term employment. 
• Creates a new guestworker category, H-1D, which would allow employers to hire guestworkers for longer-term positions, provided that they cannot fill these positions with U.S. citizen laborers.   
• Requires that employers hiring H-2B or H-1D workers to comply with wage and benefit standards, working conditions requirements, and allow workers the right to organize
• Establishes a series of worker protections for H-2B and H-1D laborers
• Allows H-2B and H-1D workers to adjust their status to other immigrant or non-immigrant classifications for which they might be eligible 

The Immigration Reform Act Of 2004: Strengthening America’s National Security, Economy, And Families (S. 2010)

The legislation would fund increased border security and criminal and background checks on visa applications; increase visas for family reunification and address processing backlogs; track foreign workers in the US; and penalize those who continue to break immigration laws.  Undocumented workers and their families in the U.S. can apply if they pass national security and background checks; have 5 years residence in the U.S., have worked 4 years in the U.S.; have paid federal taxes; demonstrate knowledge of English and civics; and pay a $1000 fine. Senators Hagel and Daschle introduced the bill on January 21, 2004.

Family Reunification. Immediate relatives of citizens are exempted from the family-sponsored immigration cap of 480,000. This legislation would extend the exemption to families of legal permanent residents.

Willing Worker Programs. The bill amends the definition of H-2B workers from temporary service or labor to short-term service or labor, lasting not more than nine months.  Employers must first recruit American workers and submit labor attestations. H-2B visas may be renewed, not to exceed 36 months in any four-year period. The bill also creates a new H-2C visa for temporary, non-agricultural workers who do not qualify under any of the other visas to work in the U.S. H-2C visas are issued for not more than two years, renewable once. The H-2C worker program sunsets after 5 years. The bill allows H-2B and H-2C nonimmigrants to be eligible to change status to any other immigrant or nonimmigrant classification.  Spouses and children may accompany the workers.

Employers must submit a copy of the job opportunity to the Department of Labor’s U.S. Employment Service (ES) for posting on “America’s Job Bank,” with local job banks, with unemployment agencies, and in publications. Employers filing petitions for H-2B or H-2C workers would also have to pay filing fees, which range from $250 to $1000 for H-2C nonimmigrants and from $125-500 for H-2B nonimmigrants.

A set of protections for nonimmigrant workers is also included in the bill. Among the protections, workers must have rights in collective bargaining agreements or employee contracts, and they must be allowed to find alternate employment should they become whistleblowers at their employment. Employers in violation of conditions specified in labor attestation applications may be subject to civil monetary penalties and barred from the program for 3 years.

Access to Earned Adjustment. Immigrants who have not violated their visas, have been present in the U.S. for five years on January 21, 2004, and have been employed for at least three of the five years and one year after the bill’s introduction will be eligible to adjust to permanent resident status.  In order to be eligible, immigrants must have paid taxes during the time of their employment, have basic citizenship skills (English and civics), be cleared by the FBI and DHS, and (if applicable) be registered with the Military Selective Service. Spouses and children may also adjust their status. Immigrants granted permanent residence under the Earned Adjustment Program will not be counted against numerical visa limitations. Immigrants applying for this program must pay $1,000 fines with their applications. Immigrants who are present in the U.S. on the date of the Act’s introduction who do not meet the continuous physical presence or employment requirements may apply for “transitional worker” status en route to adjusting their status.

Immigration Study Commission. Establishes a commission to review the impact of this Act on the national security of the United States, the national economy, and families, and to make recommendations to Congress.

The Border Security And Immigration Improvement Act (H.R. 2899/S.1461)

These bills would establish new visa programs for unauthorized immigrants residing in the United States and for those seeking to enter the United States as temporary workers (new nonimmigrant visas H-4A and H-4B).  H.R. 2899 was introduced by Representative Kolbe, and currently has 11 cosponsors; S.1461 was introduced by Senators McCain and Lindsey Graham.

What Employers Must Do

• Employers pay a fee of $500 to $1000 per worker.
• Employers must recruit U.S. workers for positions before filing petitions for H-4A workers. The recruitment requirements include: advertising exclusively to U.S. workers for 14 days on the an electronic job registry established by the Secretary of Labor; offering jobs to U.S. workers that are equally or better qualified; and advertising the job to non-U.S. workers through the registry after the 14 days have passed.
• Employers must: verify the worker’s identity and employment eligibility through an electronic job registry; provide the same wages, benefits, hours, and working conditions to guest workers as to U.S. workers; not require guest workers to enter into non-competition agreements; and not displace U.S. workers.
• Employers may petition for permanent immigrant visas on behalf of H-4A workers, or immigrants may self-petition after maintaining H-4A nonimmigrant status for at least 3 years. H-4A nonimmigrants will not be subject to the numerical limitations placed on employment based immigrant visas.

What Guest Workers Must Do

• Visa fees for nonimmigrants will not be higher than the actual cost of processing the applications. Biometric identifiers will be used on the visas. Visa applications from the spouses, parents, and children of H-4A nonimmigrants will receive priority adjudication.
• H-4A workers will be admitted for three years, renewable once, but the employer must re-advertise prior to filing for the extension. Guest workers unemployed for 45 days must return to their home countries.
• H-4A workers may switch jobs if the new employer files an H-4A petition and fee.
• H-4A status is not given to spouses of H-4A workers, and it is only given to children if the H-4A worker parent has sole custody or if both parents are H-4A workers.
• Any immigrant who enters the U.S. illegally after August 1, 2003 will be ineligible for 3 years following the immigrant’s departure from the U.S.
• The Secretary of Homeland Security must establish a toll-free system allowing employers to confirm an individual’s identity and employment authorization.

Status Change for Undocumented Workers. Undocumented immigrants already in the U.S. who want to adjust to H-4B status must have entered the U.S. before August 1, 2003 and resided in the U.S. through the date of H-4B application. They cannot be criminals, and they must have been employed in the U.S. before August 1, 2003 and have worked through the date of the application for H-4B status or be the spouse or child of an H-4B worker. H-4B workers must pay a $1,500 penalty in addition to application fees. H-4B workers may stay for 3 years in the U.S. H-4B shall not be eligible to change to H-4A status until completing 3 years in H-4B status. 

Increased Funds for U.S. Employment Service. This bill authorizes appropriations (but does not specify an amount) to the Secretary of Labor to aid the U.S. Employment Service in helping state public employment services meet the increased demand this Act would create.

The Border Security And Immigration Reform Act Of 2003 (S. 1387)

A guest worker program for all sectors of employment will be established for both seasonal and nonseasonal work (a new nonimmigrant W-1 and W-2 visa, respectively.)  Certain unauthorized immigrants may adjust to temporary nonimmigrant status.  Temporary workers with 3 years in the program may adjust to permanent resident status. The bill was introduced July 10, 2003, by Senator Cornyn and is cosponsored by Senator Gregg.

Guest Worker Program. Workers must be 18, without a felony conviction or 3 misdemeanors.  There will be a 1-year grace period for workers who have been or are in the country illegally to sign up for the program. Seasonal guest workers can stay 270 days in a calendar year; nonseasonal workers can stay 12 months with two 1-year extensions (total of 3 years). Workers must return to their home countries for 6 months before reapplying. Workers may not change employers unless an employer abuse complaint is filed. Workers may travel abroad. The bill allows workers to apply for legal permanent resident status after working in the U.S. for three continuous years.

Employer Applications and Petitions for Guest Workers. Employers must follow an attestation process that shows that U.S. workers are not able, willing, or qualified to fill the jobs and that the employment of the immigrant will not negatively affect U.S. workers. Employers must advertise for 14 days before applying for guest workers.

New Nonimmigrant Guest Worker Categories. The W (i) visa category will be created for seasonal guest workers. No spouses or children will be eligible to accompany the guest worker. The W (ii) visa category will be for nonseasonal guest workers, and spouses and children may accompany this worker, if he or she has an income greater than 125% of the poverty line.

Prohibition on Adjustment to Permanent Resident Status. Unless a guest worker has been employed for three or more years, he or she is not eligible to adjust status to that of a legal permanent resident.

Guest Worker Investment Accounts. A Guest Worker Investment Fund would be created for the foreign born workers’ social security and Medicare taxes. Guest workers may collect their funds on or after their departure from the guest worker program and their return to their home country. Guest worker accounts are exempt from U.S. taxation.

Funding for the Program. Funds will be appropriated to the Secretary of Labor to pay the Labor Department’s costs in carrying out the program.

Adjustment of Certain Unauthorized Immigrants to Nonimmigrant Guest Worker Status. The Secretary of Homeland Security will adjust the status of an undocumented worker to that of a nonimmigrant guest worker if the worker applies for the adjustment within 12 months of the bill’s enactment and if the worker can establish that he or she is otherwise admissible to the U.S. Also, the worker’s U.S. employer must file an attestation that the worker is employed.

Enhanced Civil Penalties for Employment of Unauthorized Aliens after Termination Date for Adjustment of Status. After the expiration of the application period for status adjustment, the Secretary of Homeland Security will impose civil penalties upon U.S. employers who knowingly employ illegal workers.

The Unity, Security, Accountability And Family Act (Usa Family Act), H.R. 440 

The legislation proposes to legalize undocumented immigrants who have resided in the US for at least 5 years, and to provide conditional legalization for immigrants who have resided in the US for less than 5 years. The applicant’s immediate family are eligible for the same relief (permanent or conditional status).  It also eliminates the 3-year waiting period for spouses and children of permanent residents temporarily waiting for visa numbers (the V visa).  Representatives Nancy Pelosi, Robert Menendez, and Luis Gutierrez introduced the bill on January 28, 2004. The bill has 21 cosponsors.

Temporary Agricultural Work Reform Act Of 2004, S. 2185

This bill would simplify the process for admitting temporary foreign agricultural workers (H-2A). It includes a one-time waiver that allows workers to apply for H-2A status from their home country. It does not provide a new way for workers to adjust to legal permanent resident (LPR) status. The Adverse Effect Wage Rate (AEWR) would be replaced by a prevailing wage. Senator Chambliss introduced this bill on March 9, 2004.  

Glossary

Lawful Permanent Resident (LPR). Any person not a citizen of the United States who is residing the in the U.S. under legally recognized and lawfully recorded permanent residence as an immigrant. Also known as "Permanent Resident Alien," "Resident Alien Permit Holder," and "Green Card Holder."

Nonimmigrant. An alien who seeks temporary entry to the United States for a specific purpose. The alien must have a permanent residence abroad (for most classes of admission) and qualify for the nonimmigrant classification sought. The nonimmigrant classifications include: foreign government officials, visitors for business and for pleasure, students, international representatives, temporary workers and trainees, representatives of foreign information media, fiance(e)s of U.S. citizens, intracompany transferees, religious workers, and some others. Most nonimmigrants can be accompanied or joined by spouses and unmarried minor (or dependent) children.

Visa. A U.S. visa allows the bearer to apply for entry to the U.S. in a certain classification,  e.g. student (F), visitor (B), temporary worker (H).

H-1B Specialty Occupations, high-tech workers, DOD workers, fashion models; cap is changed by Congress yearly

H-2A Temporary Agricultural Worker; no annual cap

H-2B Temporary worker: skilled or unskilled; 66,000 person cap

Prepared by Jessica Allison, Katherine Gigliotti, and Ann Morse
Immigrant Policy Project
National Conference of State Legislatures

The AEWR is the regional weighted average hourly wage rate for field and livestock workers combined. It is determined by the Department of Agriculture’s annual wage surveys of employers’ reported wage rates to non-supervisory workers.