By Attorneys Robert L. Reeves and Brian Spalter
Reform of our immigration laws has been a central issue in the United States for a number of years. The subject of how to deal with undocumented immigrants living and working in the U.S. has been fiercely debated throughout the government. Both the President and numerous members of Congress have indicated a desire to reform the current system and implement an approach that would enable undocumented workers to obtain temporary legal status and work authorization.
At present, there are two primary immigration reform proposals in the U.S. Senate. The first of these is a bill named the “Secure America and Orderly Immigration Act”. This bill was proposed by Senators John McCain (R-AZ) and Edward Kennedy (D-MA). The second bill is named the “Comprehensive Enforcement and Immigration Reform Act of 2005”. This bill was introduced by Senators John Cornyn (R-TX) and Jon Kyl (R-AZ).
Both the McCain-Kennedy and Cornyn-Kyl proposals provide for immigration benefits as well as enhanced enforcement provisions. One of the primary differences between the two, however, is the way in which they deal with currently undocumented workers in the long term. The McCain-Kennedy bill would enable foreign workers to ultimately obtain permanent resident status ( “green card”) and remain permanently in the United States. On the other hand, the Cornyn-Kyl bill would require foreign workers to return home after a period of time.
This article will examine the benefit portions of both the McCain-Kennedy and Cornyn-Kyl proposals in terms of their requirements and effect on the undocumented immigrant community.
The McCain-Kennedy Proposal
The McCain-Kennedy proposal would create two new temporary visa categories: H-5A and H-5B. The H-5A category would enable 400,000 “essential” workers from overseas to work in unskilled nonagricultural jobs in the U.S. A foreign national applying for an H-5A visa would be required to undergo background checks and a medical examination. The H-5A visa would be initially valid for a period of up to three years. The visa could be renewed once for an additional three-year period. A $500 filing fee would be required.
The McCain-Kennedy bill would also create an H-5B temporary visa category. This category would apply to undocumented workers currently in the U.S. As with the H-5A category, applicants would need to undergo background checks and pay a filing fee. An additional $1,000 fine would also be required. The H-5B visa would be valid for six years. After six years of maintaining H-5B status, foreign workers would then be able to apply for a green card. To qualify for a green card, an applicant would be required to meet certain employment requirements, pay taxes, and demonstrate knowledge of English and civics. An additional $1,000 fine would also be imposed.
The Cornyn-Kyl Proposal
The Cornyn-Kyl bill proposes the establishment of a new W visa category. The W visa is an employment-based, temporary visa that would require an employer to file a petition on behalf of an undocumented immigrant. The application process for a W visa would entail an undocumented immigrant leaving the U.S. and then reentering with a W visa.
The process for obtaining a W visa would be similar to the labor certification process in certain ways. Employers would be required to test the labor market in order to demonstrate that no U.S. workers are available for the job. The employer would also be required to attest that it will pay the foreign national the prevailing wage and that the proposed employment will not negatively affect the employment conditions of U.S. workers similarly employed.
The W visa program would enable foreign workers to remain in the United States for two years. After this two-year period, the worker would be required to return home for one year. The maximum period a foreign worker would be eligible for W classification is six years. Unlike the McCain-Kennedy bill, immigrant workers would not be able to apply for permanent residency, unless they qualified through an independent category (e.g., being the spouse of a United States citizen.)
Both the McCain-Kennedy and Cornyn-Kyl bills propose solutions to the dilemma of undocumented workers in the United States. Although both bills are currently only at the proposal stage, many in the immigration community are optimistic that the millions of undocumented workers in the U.S. will be able to finally obtain some legal status. If you should have specific questions regarding the proposed immigration reform programs or any other immigration matter, please do not hesitate to contact our offices to speak with one of our attorneys.