The New Immigration Law Proposal: Practical Information for All Foreigners
By Paschal Obinna Nwokocha
Attorney at Law
On January 7, President Bush announced a major new immigration initiative which, if passed into law, would be the most significant change to immigration law in 18 years.
As an Immigration attorney, we have been getting calls in the office in the last two weeks. A lot of people are confused about it. There is a lot of mis-information about it, what it provides and what the key elements of the proposals are. The purpose of this article is to specify all the major aspects of the proposal, and how they apply to aliens already in the United States.
Contrary to the popular perception, there is no new law. What we have is just a proposal from the White House. Congress has to approve a bill, and the President has to sign it before the President’s proposal will have any effect of law. Until then, there is no new law. Several immigration proposals have been offered in the past; some became laws, and others did not make it that far. And for those that became law, some underwent significant changes before they finally became law. No person is sure of exactly what the law will look like and how individual can benefit from it. Therefore, any person that offers to help fix immigration problems under the new law should be viewed with suspicion.
The President’s proposal has several elements. Below are some of the key provisions of the proposal:
- It establishes a guest worker program. Under this, foreigners can come into the United States to work for an employer; and the foreign country will be required to establish standard for enrolling its workers in the program, and establish training programs in conjunction with the U.S. employer.
- Foreign workers enrolled in this program will be eligible for “W” visa and will be placed in the job openings in the United States. The employment can be seasonal, non-seasonal or high-level professional jobs. Those in seasonal employments will hold W(i) visa and those in non-seasonal employment will hold W(ii) visa. Spouses and minor children of the person participating in this program can accompany this person to the U.S. for as long as the person is paid market rate wage.
- The foreign worker participating in this program must be at least 18 years old; without felony or 3 misdemeanor convictions and no unlawful presence in the U.S. Workers who have been in the United States without permission, or have overstayed their visas, will be allowed to benefit from this program if they filed an application under this program within one year from the date this proposal becomes law. For undocumented workers in the U.S, they have to show that they were in the United States as of the date the proposal becomes law, and will be required to have proof of employment.
- The U.S employer will have specific job offer for the foreigner and will show that there is no U.S worker available to do the job. The employer can do this by running an advertisement for a period of time before they can apply for this program. The foreign worker must also be paid the wage according to the market.
- For seasonal employees, they are limited to staying 270 days in a calendar year in the United States. Non- seasonal employees are limited to a total of three years. If they need to re-apply for the W(i) or W(ii) status, the foreign employee must return to his home country.
- This program gives the foreign worker authorization to work for the U.S. employer that joined in the filing of the petition. The employee cannot move from job to job unless he files a complaint that the employer has been abusive.
- Foreign workers under this program can travel overseas, and return to the U.S.
- This programs will forgive the applicant’s prior immigration-related violations.
- The program may lead to Permanent Residency status. The person, however, must leave and apply from the United States embassy in their home country.
- Persons who have been under this program for less than three years or have violated any of the terms of the program cannot apply for permanent residency status.
- The guest workers under this program will have Social Security accounts into which the worker’s social security and Medicare taxes will be paid into. This account becomes the property of the worker. The worker will have access to this account only if he permanently leaves the U.S and returns to his home country.
As is clear from the above, the President’s proposals are broad sketches. The details are missing. So, there are certainly several questions that are not answered by the proposal. The important thing to bear in mind is that these are just proposals. They are certain to change before they become law. It is good, however, to know what the proposals are, and be able to follow the development. We think this is a good start to what we hope will be a good, comprehensive immigration reform.
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