Posted on Free Republic Forum -- 10/17/03
Major Provisions of the Three Main Amnesty Proposals in the 108th Congress

For more information or explanation, contact Rosemary Jenks at info@numbersusa.com.
 

H.R. 3142

Rep. Cannon and Rep. Berman

View all cosponsors

S. 1645

Sen. Craig and Sen. Kennedy

View all cosponsors

H.R. 2899

Rep. Kolbe and Rep. Flake

View all cosponsors

S.1461 Sen. McCain

View all cosponsors

S. 1387

Sen. Cornyn

View all cosponsors

Border security provisions None None None
Interior enforcement provisions None Requires establishment of a toll-free, electronic employment eligibility verification system, but only employers of H-4A and H-4B workers have to use it to verify the status of those temporary workers; all employers can continue to hire illegal aliens without using the verification system - Requires DHS to establish a database to monitor the entry into and exit from the U.S. of all W workers, to track employer compliance with the program, and to store past employment records of W workers to facilitate the return of the worker to the same employer each year - Only W visa holders must be monitored, however - Increases the civil sanctions for hiring illegal aliens more than one year after enactment
Temporary worker programs created or modified - Creates a new category of "temporary resident status" for agricultural workers - Amends the H-2A temporary agricultural worker program - Creates a new category of H-4A temporary workers from abroad - Creates a new category of H-4B temporary workers who are here illegally Creates a new W nonimmigrant category for temporary workers
Numerical limits on new temporary workers None None None
Wage protections There are no wage requirements for aliens granted "temporary resident status," so only minimum wage laws apply Only minimum wage laws apply Only minimum wage laws apply
Admission criteria for temp. workers Alien must have worked in agriculture in the U.S. the lesser of 575 hours or 100 work days* between March 1, 2002 and August 31, 2003 *a "work day" is any day in which the alien is employed one or more hours 1) H-4A workers - must have a prospective employer file a petition on their behalf - must submit to a medical exam to ensure they are not inadmissible on health-related grounds - must be otherwise admissible to the U.S. (2) H-4B workers - must have been present illegally in the U.S. before August 1, 2003 - must show that they are not subject to the two-year foreign residence requirement if they originally entered as exchange visitors - must not be inadmissible on criminal, national security or public charge grounds - must not have been convicted of a crime in the U.S., except for crimes related to illegal entry or presence or immigration-related document fraud - must not have assisted in the violation of human rights - must establish that they have been employed in the U.S. since before August 1, 2003 or are the spouse or child of an alien employed since then - Any alien who enters the U.S. unlawfully after August 1, 2003 is ineligible for H-4A status until three years after departure or removal from the U.S. (1) Alien must be at least 18 years of age; (2) Alien may not have been convicted of a felony or three or more misdemeanors committed in the U.S.; (3) Alien may not have been present unlawfully in the U.S., unless such alien applies for a W visa within one year after enactment and is otherwise admissible (4) Aliens working illegally in the U.S. on the date of enactment must show evidence that they were present in the U.S. on the date of enactment and are employed on the date on which they register for a W visa
Waivers of Inadmissibility (1) The following grounds of inadmissibility in §212(a) of the Immigration and Nationality Act (INA) do not apply to aliens applying for temporary status: - (5) relating to labor certification and qualifications; - (6)(A) relating to illegal entry; -(7)(A) relating to lack of valid documents; and - (9)(B) relating to the 3 year/10 year bars on reentry after illegal residence (2) DHS may not waive the following provisions in §212(a) of the INA - (2)(A) relating to crimes involving moral turpitude or controlled substances; - (2)(B) relating to multiple criminal convictions resulting in an aggregate sentence of five years or more; - (2)(C) relating to drug offenses; - (3) relating to national security; and - (4) relating to becoming a public charge (3) Alien may overcome public charge inadmissibility by showing that he has a history of working in the U.S. (legally or illegally) without accepting public cash assistance (4) DHS can waive any other ground of inadmissibilityfor "humanitarian purposes, or when it is otherwise in the public interest" (1) No waivers for H-4A workers (2) All grounds of inadmissibility in §212(a) of the INA are to be waived for H-4B workers except: - (2) relating to criminal activity; - (3) relating to national security; and - (4) relating to becoming a public charge None
Application period Begins on the first day of the seventh month after the date of enactment and ends 18 months later No limit (1) No limit for W workers applying from abroad (2) Illegal aliens must apply within one year of enactment
Application process for temp. workers - Alien living in the U.S. may apply directly to DHS if represented by counsel or to a designated entity - Alien living abroad may apply to a State Department consular office - DHS can grant "preliminary" temporary admission and work authorization to any alien at a port of entry on the U.S.-Mexico border (but not the U.S.-Canada border) who presents an application and supporting documents that appear "credible" - After date of enactment, aliens who can establish a "nonfrivolous" case for eligibility for temporary status cannot be removed and must be granted work authorization valid until 30 days into the application period listed above - Aliens apprehended during the application period can file an application for temporary status within 30 days of apprehension and may not be removed and must be granted work authorization until a final decision on the application is made - Prospective employer must file petition on worker's behalf - DHS is required to establish a process through which an alien subject to a final order of deportation may file an application for H-4B status and be permitted to remain in the U.S. - such an alien cannot be removed until a final determination on the application has been made - Approved H-4A and H-4B workers are to be issued machine-readable, biometric visas - Prospective employer must file a petition on worker's behalf and obtain a labor attestation from the Department of Labor - Eligible workers must be enrolled under a process established in their home country
Fees - DHS is required to establish a schedule of fees to be charged to aliens applying for temporary status and for amnesty, and fees to be charged to aliens by the designated entities authorized to assist aliens with the applications - All fees are to be used for processing applications for temporary status and for amnesty (1) H-4A employers employing more than 500 employees must pay $1,000 for each petition - H-4A employers employing 500 or fewer employees must pay $500 for each petition - DHS is required to set fee for H-4A workers based on actual cost of processing the application - No fee may be charged for an extension of an H-4A visa (2) DHS is required to set a fee for H-4B workers to cover the cost of processing - H-4B workers also must pay a fine of $1,500, which may be garnished from wages if the worker does not have it No provisions included
Legal assistance for applicants Federal funds provided by the Legal Services Corporation Act may be used to assist aliens applying for temporary status or amnesty No provisions included No provisions included
Period of authorized admission New "temporary resident status remains valid until alien applies for amnesty or until status is terminated because alien is found deportable (1) H-4A visas are valid for an initial period of three years and are renewable once, but employer must re-advertise the job in the electronic job registry (see Duties of employers, below) before a renewal is granted (2) H-4B visas are valid for an initial, nonrenewable period of three years; after three years, the alien may adjust to H-4A status or leave the country (1) Seasonal W workers may be admitted for up to 270 days in any calendar year, but may reapply in any subsequent year (2) Nonseasonal W workers may be admitted for up to 12 months, and may have their visa extended for additional 12-month periods up to three years, unless the alien returns to the home country for at least six months before returning to the U.S.
Admission of families of temp. workers Spouse and minor children cannot be removed while the principal alien has temporary status, but they are not eligible for work authorization unless they qualify under another provision of law (1) Spouses, parents and children (minor and adult) of H-4A workers are not permitted to accompany the worker (unless they qualify for a visa on their own merits), but are to be given priority for visitor visas - Except that children may accompany the worker if the worker is the sole custodial parent or both parents are H-4A workers; and - Except that spouses and children of H-4A workers who initially were H-4B workers are eligible for H-4A status if the worker is the only alien among them authorized to be employed in the U.S. (2) Spouses and children of H-4B workers are to be given the same temporary status as the worker Spouses and minor children of W workers may accompany the worker to the U.S. if the worker has a level of income equal to at least 125 percent of the Federal Poverty line
Duties of employers under new program/ penalties for noncompliance - Employer must provide alien and DHS with a written record of employment each year until August 31, 2009 - Penalty for noncompliance is a civil fine up to $1,000 - Employer must advertise the job opportunity for which he seeks an H-4A worker (but not an H-4B worker) on an electronic job registry for at least 14 days; offered the job to any qualified, available U.S. worker; and sought an alien worker only through the job registry after the 14-day period - Employer must pay required petitioning fees - penalty for seeking reimbursement of fees from alien is civil fine up to $10,000 per violation - Employer must attest that he: - has used the electronic job registry to try to recruit U.S. workers for the job; - will verify the alien's identity and work authorization; - will provide the same benefits, wages and conditions to the alien as to other similarly employed workers, and require the same work hours; - will not forbid the alien from working for a competitor; - did not and will not displace a U.S. worker within 90 days before and after seeking an H-4A; - will comply with all labor laws - penalty for noncompliance is civil fine up to $10,000 per violation - Employer must use the electronic employment eligibility verification system to verify that all H-4A and H-4B workers he hires are legally authorized to work in the U.S. - penalty for noncompliance is civil fine up to $5,000 per violation - Employer must pay for transportation to home country of H-4A worker who is dismissed without cause - penalty for noncompliance is reimbursement of transportation cost and civil fine up to $5,000 - Employer must file an application for each W worker containing: - for a nonseasonal worker, a request for an attestation from Labor that no qualified U.S. workers are available and that W workers will not adversely affect wages or working conditions; a job offer describing the period of employment, skills required and wages to be paid; attestations that the employer has offered or will offer the job to any qualified U.S. worker, has advertised the job in the local market for at least 14 days, will pay at least minimum wage, will provide insurance if workers' comp does not cover the job, and will comply with vehicle safety laws - penalty for noncompliance is same as for U.S. workers plus ineligibility for W workers for up to 10 years - Employers who participate in the W worker program will be absolved of all liability for past hiring of illegals
Rights of temp. workers/penalties for non-compliance - Any fake or stolen Social Security numbers are to be corrected and any deposits credited to the alien - Alien can only be terminated for cause or contract impossibility - Alien may travel abroad and reenter the U.S. at will - Alien who knowingly or willfully makes false statements or misrepresentations in an application for temporary status is subject to a fine and up to five years imprisonment, and is inadmissible to the U.S. - H-4A may seek a different job than that for which he was admitted and may remain in the U.S. if the new employer files a petition on his behalf within 45 days of termination and the alien has not worked without authorization - An H-4A worker who violates any term or condition of his status is permanently ineligible for H-4A status - Alien may travel abroad and reenter the U.S. at will - Illegal aliens and visa overstayers who participate in the program are to be absolved of all liability for past illegal behavior pertaining to their immigration status - W workers may travel abroad and reenter the U.S. at will - 100 percent of W workers' Social Security contributions are to be deposited into a guest worker investment account for each W worker - each W worker is to receive annually a report on the amount deposited into his investment account - the funds in the account are to be transferred to the worker after he permanently leaves the W worker program and returns to his home country
Termination of temporary status During the period of authorized stay, temporary status may be terminated only if the alien is found to be deportable - H-4A status terminates if the alien is unemployed for 45 or more consecutive days, or if the alien fails to apply for amnesty after six years - H-4B status terminates after three years if the alien fails to apply for adjustment to H-4A status No provisions included
Amnesty      
Numerical limits on aliens to be awarded amnesty None None DHS may set the annual number of aliens to be awarded amnesty based on "economic determinations made by the Secretary of Labor and the number of participants" in the W visa program
Estimated number of aliens to be awarded amnesty Of the 1.2 million illegal aliens currently working in agriculture, an estimated 860,000* could qualify for amnesty *estimates by Dr. Philip Martin, University of California, Davis Of the estimated 9-11 million* illegal aliens currently residing in the U.S., somewhere around three-fourths would qualify for amnesty between six and nine years after the provisions of the bill were implemented. Since there is no limit on the number of new foreign workers who could be awarded amnesty after spending three years as H-4A workers, it is impossible to estimate the total number of aliens who would be amnestied under this bill. *based on Census Bureau estimates Of the estimated 9-11 million* illegal aliens currently residing in the U.S., somewhere around three-fourths would qualify for amnesty after working on W visas for three years. Since there is no set limit on the number of new foreign workers who could be awarded amnesty after spending three years as W workers, it is impossible to estimate the total number of aliens who would be amnestied under this bill. *based on Census Bureau estimates
Qualifications for amnesty (1) Alien must have worked in agriculture the lesser of 2,060 hours or 360 work days* between September 1, 2003 and August 31, 2009 (2) Alien must have worked in agriculture the lesser of 430 hours or 75 work days* in at least each of three non-overlapping periods of 12 consecutive months between September 1, 2003 and August 31, 2009 (3) Alien must have worked in agriculture the lesser of 1,380 hours or 240 work days* between September 1, 2003 and August 31, 2006 (4) Alien must prove (1)-(3) above, by a preponderance of evidence, with employer-provided records, government employment records, or other "reliable documents" - qualifying hours/work days* may include work performed under an assumed name *a "work day" is any day in which the alien is employed one or more hours (1) Alien must have H-4A status; (2) Either the alien's employer may file a petition on his behalf at any time after he is granted H-4A status, or the alien may self-petition after at least three years in H-4A status If the alien has worked as a W nonimmigrant in the U.S. continuously for three years and returns to the home country to apply for amnesty; - The alien will be given priority for lawful permanent resident status based on whether he has an employer sponsor, whether he received promotions or raises while in the U.S., whether he paid taxes, how well he speaks English, his education level, and whether he has avoided criminal activity
Waivers of inadmissibility Same as for applicants for temporary resident status (see page 2 above) - For H-4A workers who originally were H-4B workers, the following grounds of inadmissibility in §212(a) of the INA are to be waived: - (6)(A) relating to illegal entry; - (6)(B) relating to failure to attend an immigration proceeding; - (6)(C) relating to misrepresentation; - (7)(A) relating to lack of valid documents; and - (9)(B) relating to the 3 year/10 year bar on reentry after illegal residence None
Application period Alien must apply for amnesty by August 31, 2010 (1) H-4A workers must apply for amnesty within six years, or they must return to their home country (2) H-4B workers must adjust to H-4A status or leave after three years, and then must apply for amnesty within six years of receiving H-4A status No limit
Denial of amnesty application - If an alien meets the qualifications listed above, DHS may deny amnesty and terminate temporary status if: (1) Alien received temporary status as a result of fraud or willful misrepresentation; or (2) Alien commits an act that makes him inadmissible on a ground that cannot be waived; or (3) Alien is convicted of a felony or three misdemeanors in the U.S. - If an alien fails to apply for amnesty by the deadline or fails to meet the qualifications, he becomes deportable No separate provisions for denial of amnesty are included No separate provisions for denial of amnesty are included
Amnesty for family members Spouse and any children who were minors when the alien first was granted temporary status are to be awarded amnesty upon application or if they are included in the principal alien's application No provisions included - Since H-4A workers approved for amnesty are to be given employment-based lawful permanent resident status, spouses and children would be granted lawful permanent residence as ac-companying family members - Spouses and children of H-4B workers are permitted to adjust to H-4A status when the worker does, so they would be eligible for amnesty on the same basis as the worker Since the spouses and children of W workers get derivative W status, they would be eligible for amnesty on the same grounds as the workers
Miscellaneous Provisions      
Administrative and judicial review - DHS must create a single level of administrative appellate review of final determinations - Judicial review is limited to review of a removal order No provisions included No provisions included
Federal funding for programs $40,000,000 each year from 2004 through 2007 is authorized to carry out the new temporary resident program and the amnesty Such sums as are necessary to permit the United States Employment Service to assist State public employment services meet increased demand resulting from this bill are authorized No additional funding is provided, though some current funding is diverted to the United States Employment Service
Other Amends the existing H-2A program: eliminates requirements that employers attest that there are not sufficient U.S. workers available and that importation of workers will not depress wages; permits employers to place H-2A workers with other employers; permits employers to provide a housing allowance instead of providing actual housing; requires employers to reimburse certain aliens for initial transportation to the workplace and to their home or next job after the work is finished; requires the employer to provide transportation between work and living quarters; freezes the adverse effect wage level for three years from that in effect on January 1, 2003 and permits increases based only on the Consumer Price Index thereafter; requires employer to provide each pay period a statement of hours, earnings and deductions; requires employers to guarantee H-2A workers the hourly equivalent of at least 3/4 of the work days of the total period of employment; extends the time an H-2A worker may remain in the United States to three years - Requires the Department of Labor (or a designee) to establish an internet-based electronic job registry on which employers can advertise job opportunities - registry must circulate job opportunities through the interstate employment service system and furnish them to State public employment services - Requires foreign nations that wish their nationals to be eligible for W visas to enter into an agreement with the U.S. under which the foreign nation agrees to determine eligibility of nationals to participate, establish a procedure for enrollment of eligible workers in the program, train such workers, establish procedures for providing health care, monitor and share travel data regarding such workers with the U.S., and accept the return of the workers from the U.S.

| | |