On May 23, the Senate Judiciary Committee passed the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744), which addresses many of the key elements needed for immigration reform. It includes a template for a new lesser-skilled temporary worker program; a mechanism for the undocumented population to earn legal status after being screened and paying a penalty; and a mandatory employment verification system for all employers.

As ABC’s Legislative and Executive committees reconcile the Senate immigration legislation, we would like to give you the opportunity to provide comments which will then be shared with the committees.

Review the chart below that lays out ABC’s national policy position in a side-by-side comparison with the Senate immigration legislation and let us know what you think by emailing, kintz@abc.org


Border Security

 ABC's Position Senate Bill S. 744 In line with ABC?
  • It is to the advantage of all security programs for the United States to provide a means to safely encourage non-U.S. citizens to register with their true identities. Without significant improvements to border security and the enforcement of immigration laws, a guest worker program is destined to failure.
  • Persistent surveillance in high risk sectors along the southern border. 
  • An effectiveness rate of 90 percent in a fiscal year for all high risk sectors along the southern border.
  • Bill will appropriate $3 billion to implement this strategy, including Border Patrol agents, cutting edge surveillance systems and unmanned aerial systems.
 
YES


Legalization

 ABC's Position Senate Bill S. 744 In line with ABC?
  • In past booming economies, there has been a shortage of specialized and educated workers in the United States.  A seamless pathway to citizenship for those able to fill jobs otherwise left open by U.S. citizens will help construction companies to continue to prosper
  • Individuals in unlawful status may apply to adjust their status to the legal state of Registered Provisional Immigrant Status.
 
YES

 
temporary Guest Worker Program

 ABC's Position Senate Bill S. 744 In line with ABC?
  • ABC supports the establishment of a temporary guest worker program that would allow for non-U.S. citizens to apply for the right to work legally in this country for multi-year renewable terms to ensure training investment is not lost.
  • Creation of a new nonimmigrant classification known as the W visa. The W visa holder is an alien having a foreign residence who will come to the United States to perform services or labor for a registered employer in a registered position.
 
YES
  • ABC believes that workers participating in the guest worker program should be afforded portability between employers during the term of the program.
  • If a W nonimmigrant terminates employment in a registered position or is terminated from such employment by the registered employer, such employer may fill the vacancy by hiring a certified alien, a W nonimmigrant, a U.S. worker or an alien who has filed a petition for a visa. W nonimmigrant may leave registered position and fill another new registered position. 

 YES
  • Any guest worker who is convicted of a felony will lose his/her guest worker status.
  • Ineligible if convicted of a felony.
 
YES
  • ABC is strongly opposed to Davis-Bacon prevailing wage requirements being included in any temporary guest worker program.
  • Wages are set as the greater of actual wages paid to similarly situated Americans working for the employer or prevailing wages according to BLS wage data providing a wage level commensurate with experience, training and supervision

Intent for no Davis-Bacon; language is not ideal
  • Participants in the guest worker program would have to pay all taxes and other fees required of U.S. workers.
  • Participants in the guest worker program would have to pay all taxes and other fees required of U.S. workers.
 
YES
  • When the economy has restored, there will be a need for workers, primarily for small businesses. Elimination of an immigrant workforce is not an option.  Construction, among many U.S. industries, would come to a halt without the existence of this workforce.
  • The number of registered positions granted to construction occupations may not exceed 15,000 per year or 7,500 for any six month period. A registered employer may not hire a certified alien for a registered position to perform work in a construction occupation if the unemployment rate for construction occupations in the corresponding occupational job zone was more than 8.5 percent.

 NO
  • Participants in the program cannot claim as dependents anyone not currently residing in the United States.
  • Participants cannot claim dependents residing outside the United States.
 
YES
  • Under this visa, guest workers will not be permitted to bring additional family members with them into the United States. The applicant guest worker will be required to identify those family members currently residing with the guest worker.
  • The spouse and minor children of the W visa holder will be allowed to accompany or follow to join and will be given work authorization for the same period of admission the W nonimmigrant is given.

 NO

 
employee Verification Requirements

 ABC's Position Senate Bill S. 744 In line with ABC?
  • Good faith compliance should be an affirmative defense that the employer did not knowingly hire an undocumented worker.
  • No employer who participates in the E-Verify system should be liable to an applicant under any law for any employment-related action taken with respect to an applicant in good-faith provided by the system/form.
  • Failure to use the system or failure to follow the system requirements or procedures will be considered a penalty (equivalent to a paperwork violation) for each employee involved, creating a rebuttable presumption that the employer knowingly hired or employed an individual if it is determined that he or she is not employment authorized.
  • Establishes an affirmative defense to a charge of unlawful hiring or employing an unauthorized alien if an employer complies in good faith with the requirements of the system.
  • Recognizes good faith compliance with the requirements of the system unless the employer had knowledge an individual was not authorized for employment.
  • Establishes compliance with verification requirements, even if there is a technical or procedural error, so long as the employer made good faith efforts to comply. However, the good faith compliance provision will not apply if the violation is not de minimis, DHS has explained why the violation is not de minimis, the employer has been provided at least 30 days to correct the violation and the employer fails to correct the violation during that period.
  • DHS and the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) granted authority to require employers to provide information and documentation regarding their use of the system. A failure to comply with such a request will also be considered a violation.
  • Provides for no private right of action.
 
YES
  • Allowing each state and locality to promulgate its own employment verification laws creates an unworkable legal patchwork and poses an undue burden on businesses. Employers need a uniform legal framework to alleviate confusion about their responsibilities under the law.
  • As of the date of enactment, all state and local laws and policies that relate to employment verification are invalidated, including any state or local statute or rule establishing a criminal or civil fine or penalty structure.

YES
 
  • Employers should be subject to one uniform set of employment verification laws.
  • Legislation streamlines the paperwork of 1-9 and E-Verify however, employers are still required to use both.

Largely in line with ABC's position

  • Employers should not be required to re-verify their existing workforce.
  • Most employers will be required to use the system only to verify all new hires and for reverification of expiring work authorizations.

 YES
  • Employers who correctly use E-Verify or I-9 requirements should not be subject to DHS arrests of workers at the place of employment. And they should have an opportunity to dispute the government’s conclusion that a worker is unauthorized.
  • Individuals are provided increased protections and significant rights to appeal any determination by the system that an employee is unauthorized.
  • Employees cannot be terminated until they have exhausted right to seek review of determination by agency, and review of an adverse agency determination by either DHS or SSA by an administrative law judge (ALJ).  The ALJ can order the employer (even though the employer is not a party), DHS or SSA to pay back pay, lost wages and attorneys’ fees in the event the agency determination is reversed.
  • Intent to discriminate element removed from prohibition related to document abuse.
  • Creates new categories of immigration-related discrimination violations for employers’ operation of the verification system, none of which include intent to discriminate as an element of the violation.
  • Makes it an unfair immigration-related practice to withhold employment records from employees.

No, creates undue burden

  • ABC opposes “cross-liability” provisions that hold employers accountable for the workers of other employers with whom they have contracts, subcontracts or other form of exchange (subcontractor-liability).
  • There is no subcontractor-liability clause and there was no intent to include in the legislation by the authors.
 
YES


 H-2B Visas

 ABC's Position Senate Bill S. 744 In line with ABC?
  • ABC supports simplification and expansion of the H-2B visa program. Further strides to simplify the process, in conjunction with a major expansion of the cap, are necessary in order to make this program an effective tool.
  • Wages are set as the greater of actual wages paid to similarly situated Americans working for the employer or prevailing wages according to BLS wage data providing a wage level commensurate with experience, training and supervision.
    • Employers are not obligated to pay mean wages, or the greater of the mean wage, Service Contract Act (SCA) wage or Davis-Bacon Act (DBA) wage.  SCA and DBA wages only apply if employer is hiring worker for a federal contract.
  • Permanent returning worker exemption so that returning H-2B workers do not count toward the annual 66,000 H-2B cap.

 YES

 
ineligible Employer Language

 ABC's Position Senate Bill S. 744 In line with ABC?
  • Not currently in ABC's position. 
  • No employer may be approved to become a registered employer if, within three years prior to the date of application, they received a citation for a willful violation of the overtime provisions of section 7 (other than a repeated violation that is self reported) of the Fair Labor Standards Act of 1938 and any applicable regulation.
  • No employer may be approved to become a registered employer if within three years prior to the date of application, they received a citation for a willful violation or repeated serious violation involving injury or death of section 5 of the Occupational Safety and Health Act of 1970 (OSHA).


NO