On 02/18/2021, the U.S. Citizenship Act of 2021 (Act) was introduced as companion bills in the Senate by Senator Robert Menendez and in the House by Representative Linda Sanchez.* This article focuses only on provisions affecting the business community, both salutary and less favorable. It is unlikely to be passed in its entirety but, if broken down into palatable sections to make it through the House and Senate, there is bipartisan support for some of the Act’s proposed business immigration reform.
Proposed Provisions Favorable for Business
- The Act would modestly increase the cap on employment-based green card visas available per year from 140,000 to 170,000. However, most of these would go to unskilled workers which are generally not Chinese or Indian beneficiaries where the worst backlogs occur.
- The Act would also recapture unused employment-based green card visas for other, undersubscribed countries, which could liberate quite a number.
- Spouses and children of beneficiaries are currently included in the 140,000 cap, thus using up many available green card visas. Under the Act, they would no longer be counted against the cap so that the 170,000 visas would only be counted for the primary beneficiary. The accompanying family members would be accorded green cards as dependents, thus not reducing the annual quota of 170,000.
- The Act would allow Ph.D. holders in Science, Technology, Engineering, and Math (STEM) subjects to jump to the front of the employment-based green card line.
- The Act would cap the long waits — often for decades — for Chinese and Indian nationals, to no more than 10 years.
- Under a proposed 5-year pilot program, states could apply for 5,000 additional visas per year if local economies can support this additional workforce.
Proposed Provisions Unfavorable to Business
By way of background, H-1B visas are nonimmigrant visas for skilled workers which U.S. businesses tend to rely upon to fill-entry level professional positions. The most common route for a business when hiring a foreigner is initially to hire them as a recent college or university graduate on an F-1 student visa who has been approved for Optional Practical Training (OPT). The OPT then permits the student to work for one year post-graduation on their F visa without the employer being involved in the visa process. For STEM graduates, this OPT period can be extended for up to three years. Before the OPT period expires, some employers, satisfied with the student’s performance, choose to apply for the H-1B visa which is subject to an annual lottery due to demand exceeding supply (65,000 for Bachelor degrees or foreign equivalent and 20,000 for Master’s degree or higher).
- The Act would prioritize highest paid workers for H-1B visas which is usually not the case for an entry-level position. This would force employers to pay higher wages to not only that worker but all US workers in similar positions, de-incentivizing start-ups hoping to become the next Google from hiring foreign talent and hurting non-profits with limited financial means.
- While it is unlikely to be enacted in entirety, even partial passage of the Act would involve inclusion of Title V, Employment Authorization and Protecting Workers from Exploitation (§5105), in its provisions. If enacted, employers potentially would be subject to increased immigration-related worksite liability and penalties far beyond current law, increase their I-9 and E-Verify obligations, and see increased penalties.
- The Act would grant immigration benefits to noncitizens who act as material witnesses in an investigation of a claimed workplace violation under federal, state and local employment laws, including U visa status, temporary relief from removal, employment authorization and even green card status.
Why Inclusion of Title 5 (Section 5105) Provisions is Important and of Special Concern to Employers
Under the Immigration and Nationality Act (INA) §274B(a), only “protected individuals” may assert citizenship status discrimination. These protected individuals are currently defined as U.S. citizens, lawful permanent residents which means green card holders, and approved asylees or refugees.
If enacted, Title V’s §5105 expands potential claimants to include all non-U.S. citizens with employment authorization, comprising all nonimmigrants visa holders sponsored by their employers, and any holders of Employment Authorization Documents (EADs).
Title V would also transfer enforcement jurisdiction from the Equal Employment Opportunity Commission (EEOC) to the Immigrant and Employee Rights Section of the Civil Rights Division within the Department of Justice (IER), formerly the Office of Special Counsel for Immigration-Related Unfair Employment Practices, and would extend protection against national origin and citizenship status discrimination beyond hiring and discharge to include “verification of the individual’s eligibility to work in the United States” or “verification of employment authorization”.
Title V would expand an employer’s potentially unfair I-9 documentary practices by applying a “disparate impact” standard of proof. Thus, acceptable evidence could be pattern-based or statistical. (Currently, the intent or purpose to discriminate must be proven and liability is limited to citizenship status discrimination.)
Title V would also create new forms of unfair immigration-related employment practices involving improper use of E-Verify should an employer (A) deny workers’ employment or post-employment benefits; (B) misuse E-Verify to discriminate based on national origin or citizenship status; (C) require an employee or prospective employee to use any “self-verification feature of E-Verify as a condition of application or employment”; (D) use an immigration status verification system, service, or method other than E-Verify; (E) grant unauthorized access to document verification or E-Verify data; or (F) fail to take reasonable safeguards against unauthorized loss, use, alteration, or destruction of data.
Finally, upon an employee’s request, Title V requires an employer to provide the employee with all employment records required to be maintained under federal, state or local law, including dates or hours of work and wages received. The EEOC must refer all alleged immigration-related unfair employment practices filed with it to the IER.
In terms of penalties, Title V would increase existing civil fine amounts for unlawful immigration-related discrimination or other unlawful practices. Fines would range from $2,000 to $5,000 per employee, with repeat offenders fined as much as $25,000 per employee. An additional fine of up to $5,000 would be added to employment eligibility verification violations if an employer is found to have engaged in civil violations of labor laws related to wages and hours, labor relations, family and medical leave, occupational health and safety, civil rights, or discrimination, as long as any enforcing agency has already made a finding of a violation with respect to the unauthorized worker.
Title V would also establish an Employment Authorization Commission (EAC) for two years from date of inception to represent the employer, labor and civil rights communities and make recommendations to the President and Congress on nondiscriminatory policies to verify the employment eligibility, consider if E-Verify errors adversely impact various populations, and issue a report within 180 days of the appointment of all members.
With a change in administrations, there is both a legislative and public appetite for immigration reform evidenced by this ambitious Act. How much will ultimately become law will depend upon the Act being vetted and most likely passed piecemeal.
*Most of the Act’s provisions deal with legalization for an estimated 10 plus million undocumented immigrants, address the status of undocumented people who are temporary status recipients (TPS) and those who were brought into the country as young children — known as Dreamers — who have been allowed to remain under Deferred Action for Childhood Arrivals (DACA). The Act also seeks to reform the asylum system and raise the annual refugee cap.