S.1639
The
Secure Borders, Economic
This bill replaces the previous 2007 Senate immigration bill, numbered S. 1348, and its substitute Senate Amendment 1150. Senate Bill 1639 uses the text of Senator Kennedy (Democrat-MA) and Kyl’s (Republican-AZ) SA 1150, but includes the amendments made before June 7, 2007 as well as $4.4 billion in mandatory spending for border enforcement. This is meant purely as an educational tool, with the caveat that the author is neither a lawyer nor law student. It should also be noted that the temporary worker program is only one part of S.1639. The other titles (or large components of the bill) deal with border security, enforcement, and most importantly to me, the legalization of currently illegal immigrants and the creation of a merit based point system that gives points for education, work experience in the US, the demand for occupations above the domestic supply, and immediate family connections to US citizens or legal residents. It would allow 567,000 visas to be given out to estranged family members to reduce the backlog of applications, and it would make at least 140,000 immigrant workers permanently legal each year, for the first seven years at a minimum.
Title IV. New Temporary Worker Program
Subtitle A -Seasonal Non-Agricultural and Year-round Non-immigrant Temporary Workers
The Democratic Policy Committee[2]
offers a helpful summary and describes the bill in this way,
[Title IV] would create a new temporary worker Y-1 visa that would
allow an alien, who has a residence in a foreign country which the alien has no
intention of abandoning and who is coming here to temporarily perform labor or
services, if unemployed persons capable of performing such services cannot be
found. The H-2A program would be reclassified as Y-2A and the H-2B
program would be reclassified as Y-2B. The Y-1 program would only begin
after the DHS Secretary certifies that the “trigger” requirements in Section 2 [which
refers to border security requirements] of this Act have been met.
Sec. 401 contains a sunset provision for Y-1 visas, making the program expire in 5 years after it goes into effect. This does not affect H-2A (now Y-2B) visas.
Sec 402. This amends Section 218A of the Immigration and Nationality Act. It lays out basic requirements for labor certification, formal petitions to the Sec. of Homeland Security for visas, and the Y “non-immigration” visa.
(c) stipulates the provisions on employing non-immigrant workers. A petition must be filed to the Department of Homeland Security. (d) specifies the authorization of Y visas, including the need for foreign applicants to undergo a medical examination, provide documents on immigration history and a potential criminal record, pay a fee to recover the administrative costs of the Department of Homeland Security, and pay a state impact fee between $500 and $1500. The applicant’s household must be able to show an income of 150% poverty level, when Y-3 (family visas) are included, and must have medical insurance. These provisions may be waived for “humanitarian” purposes by the Secretary. (i) defines visas.
Y-1 visas are admitted for two years periods up to six possible years. Y-2B visas last for 10 months. Y-3 visas are given to dependents of Y-1 holders, but Y-3 visas may only last two years and no longer for a successive period, but with a possibility of 4 out of 6 years.
A Y visa holder loses eligibility as soon as he or she violates any of the initial requirements including the continuation of work[3] unless that worker contacts the DHS and establishes that the unemployment can be adequately explained by circumstances beyond the non-immigrants control.
(m) proposes the criteria for documentation that establishes legal Y nonimmigrant status and the subsequent stipulations lay out the penalties. (p) allows Y-visa holders to work for different employers than the one originally approved, under certain restrictions.
(w) establishes a Temporary Worker Program Account, which collects all federally directed fines under Title IV and mandates their use in carrying out this bill, enforcing its labor standards, and improving immigration services. 1/3 of these funds will go to the Dept. of Labor and 2/3 to the Dept. of Homeland Security.
According to (x), the fees directed towards states, as specified in this above, will be placed in a fund called “State Impact Assistance Account,” will be collected and reallocated by the Sec of Education and Sec. of HHS to provide education and health services to non-citizens. 80% of these funds will be allocated such that no state receives less than $5 million or a fair proportional share based on that state’s share of the non-citizen population. The other 20% goes to the 20 states with the highest growth rates in non-citizens.
Sec. 403 makes amendments to Section 218B (of the Immigration and Nationality Act) discuss the employer obligations under this title, including relevant information about the labor contract. The employer must pay a fee to the Department of Labor as specified by its secretary to cover its costs, and a “secondary fee” for the US Treasury between $500 (for 25 employees or less) and $1,250 (for more than 500 employees).
(b) establishes the legal procedures required of employers. The most significant is an effort to recruit US workers. 90 days or sooner of a future application for Y-visas, the employer must submit a description of the job and its wages to the “designated state agency,” so that the agency can post the job opportunity on a website, with local banks, and unemployment agencies, while also notifying labor organizations. The employer must also post the job opportunity for at least 76 days (ending no sooner than 14 days before seeking a Y-visa) to his or her own employees in a conspicuous manner. The employer must also advertise in one of the three highest circulating publications for at least 10 days (ending no sooner than 14 days before seeking visa), or post in no more than three publications if recommended by the relevant state agency.
The employer must first offer the job to a qualified US worker, and if a resolution doesn’t withstand this effort, must then attest to the Sec. of Labor that the employment of Y-visa workers will not adversely affect the wages and working conditions of US employees in that field and will not cause any US job loses, within 180 days, beginning 90 days before the application. This can be done by showing that the wages offered meet the competitive wage as set forth by labor unions, in relevant industries, or by government statistical offices. Furthermore, the employer may not obtain a Y-visa for an occupation in which a union or labor organization is currently engaged in a dispute. The employer must also provide worker’s compensation if not covered by state law.
(G) Lists further requirements to satisfy these
regulations. There must be a shortage of
(J) The records mentions above, including the application and attestation by employer will be publicly available for every Y nonimmigrant and at the place of business. (k) Within 3 business days, the Dept of Labor must be notified of separations or transfers of employment with respect to Y-visa holders.
(e) Employers may be deemed ineligible from the
program if they have misrepresented the required information or made other
violations of labor laws, upon the judgment of the Sec. of Labor.
Non-agricultural employers in areas of high unemployment (more than 7% in the
most recent year) may also be ineligible, but may petition for eligibility.
Non-immigrant Y holders may not be treated as independent contractors and has
all the rights of a
(g) Whistleblower protections are enumerated forbidding employers from intimidation and allowing the Sec. of Labor to maintain the non-immigrant’s legal status if necessary to collect legal information pertaining to alleged employer violations under this title.
(h) Labor recruiters must provide the full disclosure of relevant costs and benefits for the non-immigrant during the recruitment process, including travel expenses, labor disputes, a description of the activity involved, compensation, risks, compensation insurance information, death contact information, a form from the Sec. of Labor specifying protections of this bill, and the period of employment. These notifications must be provided in the language of the worker being recruited as “necessary and reasonable.” Subsequent sections lay out penalties for the various employer violations.
A Y-1 Non-immigrant is non-seasonal temporary worker, a Y-2A is a seasonal agricultural worker, a Y-2B is a seasonal non-agricultural worker, and a Y-3 non-immigrant is a spouse or dependent of a Y visa holder.
Sec. 404 pertains to seasonal agricultural workers and amends section 218C of the Immigration and Nationality Act. In essence it issues the same requirements for H-2A visa applicants as those of Y-visa applicants as specified above. One additional requirement is that former workers must be notified, or an effort must be made to notify them, of job opportunities, unless that worker was found inadequate for legitimate reasons. Within 28 days, the employer must submit a copy of the job offer to the state workforce agency. These employers of H-2A workers must also offer to provide housing at no cost to the workers, including if public housing is provided to them -unless a housing allowance is provided. Amendments to Sec 218E discuss procedures for extending the stay of H-2A workers and other requirements are laid out.
Section 405 establishes that the Secretary of HS must periodically adjust schedule of fees the employment of these visa holders, with public comments to be considered.
Section 409 of S. 1348 was amended by Bingaman on May 23, reducing the allocation. The new text in S 1649 allows 200,000 Y-1 visas to be admitted in a given fiscal year, and it allows 100,000 Y-2 visas for the first year, with 200,000 thereafter. Both of these limits are still subject to a “market based adjustment,” which under certain circumstances (such as running out of visas in the first half of the year), allows for an immediate 15% increase, or, under different circumstances, a 10% increase in the next year. Y-3 visas are limited to 20% of Y-1 visas.
Sec 414 creates a willing worker electronic database
with job listings throughout the
[3] Termination occurs if the holder misses 60 consecutive days of work, or for Y-1 visas, 120 aggregate days, or for Y-2Bs, 30 aggregate days.
This legislative memo was prepared by J.T. Rothwell, chief editor of 14 Points.