On Tap for Tuesday’s Hearing: Nonimmigrant Visas

Author: on 05/13/2013


After working its way through 32 amendments related to border triggers and the rest of Title I at their markup last week, the Senate Judiciary Committee is going to jump ahead on Tuesday to Title IV, which has a mixed bag of nonimmigrant provisions for business immigration.

These provisions came after what seemed like eons of negotiation between labor and business, so many of them may be considered “core” to the “Gang of Eight” bill and therefore the four members of the Gang that sit on the Judiciary Committee could vote en bloc to prevent any big changes that might endanger those compromises.

So what’s in there? Here’s a small sample:

The Temporary Visa for Lesser-Skilled Workers (W visa) addresses one of the most obvious shortcomings in previous immigration reform—future flow.  One vital component is that spouses and minor children are included and are work-authorized, providing much-needed family unity for those seeking to come to the U.S. temporarily to work.  It also importantly offers flexibility for workers by allowing them to switch from one registered employer to another, and by giving them a way to apply for the merit-based lawful permanent residence program or the employment-based system.  These elements mean that workers wouldn’t be potentially “trapped” in exploitative employment.

The drafters of the legislation are taking the slow road with the W visa by starting with a 20,000 cap on W visas, rising to 75,000 visas in four years. Conceivably, the cap could increase to 200,000, depending on operation of a formula based on unemployment, job openings, number of applications, and recommendations of a newly-created federal Bureau that would track relevant statistics.  That 20,000 starting point might be too small for the employer needs we know exist.

The most mixed portion of the bag relates to H-1Bs. The bill, by providing for an increase in the H-1B quota to a floor of 110,000 and a ceiling of 180,000, reflects an understanding that foreign talent, especially those educated in our nation’s graduate schools, can and do contribute to America’s economic growth. An amendment by Senator Hatch that might come up in tomorrow’s markup would improve this provision even further.

The bill recognizes the human face of the H-1B nonimmigrant:  it provides for work authorization for their spouses on a reciprocity basis and allows for a 60-day grace period after an H-1B nonimmigrant ceases the sponsored employment, enabling the individual to maintain lawful presence during that time.

But if the bill giveth, the bill also taketh away.  Some of the H-1B provisions are troublesome, adding burdens to what is supposed to be a visa that enables American businesses to be nimble in meeting specialty skill needs.  The bill requires invention of a new internet posting recruitment system by the Department of Labor (an agency notorious for non-reality based recruitment requirements in the permanent labor certification context), substitution of government judgment for employer judgment in who should be offered these positions of specialized skill, and a highly distorted wage requirement that will result in foreign workers being paid more—sometimes considerably more—than their U.S. citizen counterparts.

So on Tuesday, expect to see another long day of amendment consideration and voting by the committee members as they work their way through a few more of the hundreds of amendments filed last week.

By taking up Title IV this early in the markup process, the committee is showing how important it is that immigration reform not only find a solution for the 11 million undocumented, but also bring our immigration system forward into the 21st century to meet the needs of American companies.

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