New W Visa Category For Guest Workers Proposed In Senate

Texas Republican Senator John Cornyn has introduced a major piece of legislation that would create a new guest worker visa category. The bill, called the "Border Security and Immigration Reform Act of 2003" would create a new W visa category that would be similar, but much more expansive than the H-2B temporary worker category.

What does a country need to do for its citizens to participate in the guest worker program in the US?

The Cornyn bill would only be available to nationals of counties that sign on to participate in the guest worker program and meet various conditions. Foreign countries interested in participating must

1. develop standards of eligibility for enrollment in the program of workers who are natives of that country;

2. establish a process for the enrollment in the program of eligible workers;

3. establish, in cooperation with US employers, a training program in the country for such workers;

4. establish procedures for providing health care;

5. monitor and share information with the US regarding the coming and going from the country of the participating country enrolled workers in the program;

6. accept the return of the workers from the US.

What are the basic requirements for a guest worker to participate in the program?

The guest worker program will have four basic elements:

1. job opportunities for qualified workers in the US will be found in cooperation with the participating country

2. the guest workers will be admitted to the US to fill those jobs

3. the work will be performed either on a seasonal or non-seasonal basis

4. the guest worker must return to the guest worker country before the expiration of the worker's period of authorized stay in the US.

Which immigrant workers are barred from participating in the guest worker program?

Certain aliens will not be allowed to participate in the program. They include children under 18 (unless they are accompanying another adult guest worker), aliens with felony convictions or more than three misdemeanors, or any alien unlawfully present in the US. However, people unlawfully present can participate if they apply for admission in the guest worker program not later than one year after the date of enactment of this new legislation.

What are "seasonal workers"?

Seasonal workers are those coming to the US to work for no more than 270 days in a calendar year. Seasonal workers are permitted to apply for re-admission to the US every year without a limit on the number of years worked.

What are " non-seasonal workers"?

Non-seasonal workers are those in the US for periods not to exceed twelve months. Extensions of twelve months are permitted for a total of thirty-six months. If the worker returns to his or her home country for six months or more, the worker is entitled to another thirty-six months on a W visa.

What type of documentation will workers be provided to prove they can work?

Workers on W visas will be granted employment authorization documents with a photograph proving their identity.

Can W visa workers travel freely?

Yes. However, the entries and exits of W visa workers will be monitored and tracked to make sure that workers are complying (including checking to make sure workers are working for the authorized employer).

Is this program an amnesty?

Well, yes. Workers participating in the program "shall be absolved of all liability for illegal behavior, as such behavior pertains to the immigration status of the alien that occurred before the alien's participation in the guest worker program."

Can W visa workers qualify for green cards?

Yes. For the first time, the US government would have a point system to determine the priority in granting permanent residency. Applicants who have worked continuously for three years under the program will be given a priority. Note that workers can only apply for a green card when the applicant has returned to the worker's home country. Employers will no doubt be unhappy about this since it will obviously disrupt the employment relationship.

The point system will be based on the following factors:

- whether the worker has an employer sponsor
- whether the worker received promotions or pay increases during the worker's employment periods
- whether the worker paid taxes
- the proficiency of the alien in speaking English
- the education of the worker
- whether the worker has refrained from illegal activity

What kinds of businesses can be "employers" under the proposed law?

Any individual or employer can potentially be an employer.

What types of jobs can qualify as a legitimate "job opportunity"?

The bill states that a "job opening for temporary full-time employment" at a place in the US to which US workers can be filled. The term "temporary" is a bit worrisome since this is a major problem for H-2B employers who have no problem showing that they cannot find American workers but cannot show the job is of a temporary nature.

Employers are also required to first file an attestation describing the nature and location of the work, the anticipated period for which the worker will be needed, the wages to be paid and the method of transportation, if needed.

The US Labor Department is also required to attest that there are not sufficient workers able, willing and qualified and available immediately to perform the job in the employer's petition. Also, the employer must attest that the wages and working conditions won't adversely affect the wages and working conditions of workers in the US. The process is basically the same as the labor certification process used in H-2B and permanent residency cases. One difference is that the employer needs to pay either the hourly wage rate listed under the Fair Labor Standards Act or the applicable minimum wage. There is no reference to a prevailing wage.

Like the H-2B visa, associations can file on behalf of one or more employer members.

How long will it take to get a certification from the Labor Department?

The good news for employers and workers is that the Labor Department is only supposed to review applications for completeness and obvious inaccuracies. Once the Labor Department makes this determination, they must certify the position. And the certification must be issued within 14 days.

No less than a week before the employment is supposed to begin, the Labor Department must issue a report to the employer listing the name, contact information and specific work permit information of each guest worker who has been authorized to perform the work sought by the employer. The employer then will present the worker with a contract stating that the worker agrees to comply with all US laws and the employer will permit access to the workplace by the Department of Labor.

What happens is an employer violates the program's rules?

An employer faces a ten year debarment from using the guest worker program if it violates the rules on three counts within three consecutive years. Also, workers will have teh opportunity to switch employers if they file a complaint against an employer who engages in bad acts. Such employees are to be immediately reassigned and the matter will be heard by the Secretary of Homeland Security within 30 days. If the employer is found not in violation, the employer shall be assigned a new employee within 15 days.

Is there an amnesty for employers?

Yes. Employers are also absolved of liability for illegal behavior relating to employing undocumented workers.

Can spouses and kids come to the US with the principal applicant?

Yes as long as the principal applicant makes 125% or more of the federal poverty income level.

How many W visa holders can qualify for green cards?

The Secretary of Homeland Security actually has the discretion to adjust the total number of people who may adjust status to permanent residency each year under the program. Economic conditions and the number of people in the program will play a role in coming up with this number.

What happens if an employer continues to illegally employer workers after the program becomes effective?

An employer may face new penalties aside from ones currently available under the law. The DHS may impose a civil penalty of $500 to $2500 per unauthorized worker for the first violation and $2000 to $5000 for the second found violation. The number goes to $4000 to $10,000 for the next violation plus a five year debarment from using the guest worker program. Finally, the next violation will trigger penalties of $10,000 per worker plus a permanent bar from the program.