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The new, bi-partisan “Border Security, Economic Opportunity, and Immigration Modernization Act,” (S. 744) that was approved by the Senate in a historic vote on June 27th has left many Americans, including business owners, wondering what to expect next. The House will now consider S.744, but it is unlikely to be introduced on the floor as the same Senate bill. Instead, the House is expected to consider separate immigration bills, packaged together.
S.744 is comprehensive and contains many sections with meaning for business owners. So while there are technically no new immigration laws in place that affect business and hiring today, it is important to understand what is at stake for business owners within the bill. Here are three major changes in the bill that could potentially impact your business most.
1. BUSINESS OWNERS WILL BE REQUIRED TO USE A FEDERALLY MANDATED E-VERIFICATION SYSTEM FOR NEW HIRES.
The U.S. Citizenship and Immigration Service (USCIS) E-Verify system is an automated link to federal databases for employers to check applicants for legal employment status. Although it is currently available in all 50 states, each state determines its own requirements of use. Four states (Alabama, Arizona, Mississippi, and South Carolina) require all employers to check new hires with E-Verify. Other states have limitations of use by size of company, industry, etc.; others have legislation pending. Illinois, like some other states, has passed legislation that prohibits state or localities from requiring employers to use E-Verify. With the passage of S.744, every business would be required to use E-Verify over the next five years.
2. EMPLOYERS MUST ADVERTISE POSITIONS TO U.S. CITIZENS BEFORE HIRING A VISA HOLDER.
Depending on many factors, including the type of visa holder you want to employ, you may be required to advertise an open employment position and show good faith recruitment efforts to find a qualified U.S. citizen before hiring a visa holder. The measure is meant to keep employers from displacing American workers, however it is an area of the bill that is most debated. This requirement would make it harder to hire an immigrant, who may be the most qualified for the position. However, it would also offer job opportunity to unknown, equally qualified U.S. citizens first.
3. EMPLOYERS CAN EXPECT A GREATER AVAILABILITY OF H-1B VISAS.
H-1B Visas grant non-immigrant, temporary work status to individuals in highly professional and technical fields, such as medicine and health, engineering, biotechnology and business specialties. Currently, the U.S. caps H-1B visas at 85,000 each year. However, last year, 124,000 petitions were filed for an H-1B visa. The government distributed the excess by a lottery system. Under the new law, the amount of visas granted annually would be determined by a market escalator formula that considers employer demand and unemployment data. Given the increased demand for STEM professions in the United States, most experts expect the number of H-1B visas to double if the bill passed.
Gardi, Haught, Fischer & Bhosale LTD offers counsel to business owners employing visa holders, as well as visa holders and their relatives to obtain legal employment status in accordance with changing legislation. If you need assistance with an immigration issue, contact Ann Fischer at afischer@gardilaw.com.
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