Guest Workers Under Immigration Reform

By Attorneys Robert L. Reeves and Julie R. Sparks

Democrats and Republicans have taken opposing views on many important issues facing our country, but our congressional representatives are united in agreement on one idea – our immigration system is broken and in need of major reform. How best to repair the system, however, has been a source of much debate.

Over the past year, numerous proposals have been proffered aimed at reforming our immigration system. President Bush continued to call for comprehensive reform, including a guest worker program under which workers could apply for temporary, nonimmigrant status which would afford them the right to work in the U.S. The House and the Senate were at direct odds over how to reform our immigration policies, with the House focused on creating criminal penalties for those unlawfully present, and the Senate focused on creating a guest worker program.

Of the many solutions proposed, immigration advocates have widely supported Senate Bill S.1033, commonly known as the McCain-Kennedy bill. Under this proposed legislation, a new temporary visa category would be created – H5B – which would permit those unlawfully present in the U.S. on or before May 12, 2005 to apply for a temporary work visa, valid for up to six years. Notably, one would not be required to depart from the U.S. in order to apply for this visa. However, only those already employed prior to May 12, 2005 would be eligible to apply.

Under the McCain-Kennedy bill, generally, applicants who are not criminals and who do not pose a security threat to the U.S. would not be penalized for conduct which occurred prior to May 12, 2005. Even applicants with serious immigration violations would be eligible, including those who have triggered the 10-year bar due to unlawful presence, those with final orders of removal or deportation, and those who have entered the U.S. illegally.

Finally, penalties for failure to leave the U.S. after receiving Voluntary Departure from an Immigration Judge would not apply, and the government would no longer have the right to reinstate removal or deportation orders against H5B applicants. Seemingly, those currently in removal proceedings before an immigration judge would also be eligible to apply. Recipients of H5B status would later become eligible to apply for a green card.

Had the McCain-Kennedy bill passed, it would have created a wide path for many undocumented workers to obtain permanent residency in the U.S. Unfortunately, because the House and Senate were at such odds over immigration reform, efforts to come up with a compromise failed. After the November 2006 elections, however, control of Congress shifted from Republicans to Democrats, creating much hope in immigrant communities for the passage of positive reform.

Whether or not the House will push for comprehensive immigration reform remains to be seen, but advocates remain hopeful that the new congressional leadership will work with the White House to finally create a guest worker program and legalize the status of many undocumented workers.