The Comprehensive Immigration Reform Act of 2010 – Part III

By Michael Phulwani
This is part III of the article on Comprehensive Immigra-tion Reform Act of 2010, which was introduced on September 29 by Senator Menendez (D-NJ) and Senator Leahy (D-VT). This document, which has been prepared by the American Immigration Lawyers Associa-tion (AILA) summarizes the bill. Note that this summary was prepared under extremely short time constraints and may have inaccuracies or omissions.

Title IV — Reforming America’s legal immigration system:

Family and employment based immigrant visas reforms:

Affidavits of support: The bill changes the affidavit of support requirements to require sponsors to provide support at 100 percent of poverty level instead of 125 percent of poverty level.

Retaining workers subject to green card backlog: The bill allows workers, who are eligible for adjustment of status to permanent residence but for whom a visa number is not currently available to apply for adjustment. The application  is not approved until the  visa number is available. Employment authorization documents shall be issued in three-year increments.

Permanent partners: The bill defines “permanent partner” and “permanent partnership” as a term of art for inclusion in the INA and incorporates and integrates “permanent partners” into relevant sections of the INA.

Reforms to specific employment-based visa categories: The bill permanently authorizes and includes enhancements to the EB-5 program, and permanently authorizes the Special Immigrant Non-minister Religious Worker Program, the Nonimmigrant Nurses in Health Professional Shortage Areas Program, and the Conrad State 30 Program. It creates incentives for physicians to practice in medically underserved communities.

Student visa reform: The bill amends INA to expand eligibility for student visas. Foreign students will be permitted to enter the United States with immigrant intent if they are a bona fide student so long as they pursue a full course of study at an institution of higher education in a field of science, technology, engineering or mathematics. This bill also outlines the requirements for off-campus work authorization for foreign students.

Protection of H-2B nonimmigrant and workers recruited abroad:

Protections for workers recruited abroad: Requires individuals, who contract for foreign labor to disclose at  the time of recruitment key information about the position.

Enforcement of federal labor laws relating to H-2B nonagricultural guest worker: The bill allows H-2B workers to bring civil actions against their employers. The Legal Service Corporation may provide legal services on behalf of such workers.

Protections for workers: The bill requires employers to pay for or reimburse the cost of the initial transportation to the place of employment and to return to the country or origin or to go to the next place of employment. Employers will guarantee employment for 100 percent of workdays in the work contract.

H -2B portability: Authorizes an H-2B visa holder to accept new employment if the new employer files a new petition.

H-1B and L-1 visa reforms: The bill adds a requirement that employers, who intend to file H-1B visa petitions, must first advertise the job opening online for 30 days. A petitioning employer cannot place an H-1B visa holder at another employer’s worksite unless the worker is primarily supervised by the petitioning employer and the placement is not a labor-for-hire arrangement. The bill prohibits petitioning employers from recruiting only potential H-1B nonimmigrants for job positions. If the employer has 50 or more employees,  no more than 50 percent can be H-1B workers, who are not applying for permanent residency. The Labor Secretary will maintain a list of applications that have been filed and publish the list on its website.

Investigation, working conditions, and penalties: The bill increases fines for H-1B employer violations and adds that employers may be liable for lost wages and benefits. The bill prohibits employers from requiring an H-1B worker to pay a penalty for quitting or for not offering an H-1B worker the same benefits and eligibility for benefits as US workers.

H-1B government authority and requirements: Requires employers to provide employees and beneficiaries with the original or certified copy of            all petitions, notices, and correspondence with government agencies, upon written request.

L-1 employer petition re-quirements for employment at new offices: The bill requires that if an L-1 nonimmigrant visa holder will be working at a new office, the L-1 petition may be approved for up to 12 months if the alien has not been the beneficiary of two or more such petitions in the past two years.

Providing premium processing of employment-based visa petitions: The bill authorizes the creation of a premium processing program for employment-based visa petitions and administrative appeals.

Visa revalidation: The bill permits certain nonimmigrant visa holders to apply for visa renewals within the US if (1) the visa is valid or has been expired for less than a year, (2) the alien is seeking the same type of visa, and (3) the alien has complied with all US immigration laws and regulations.

Time limits for nonimmigrant to depart the United States: Aliens, who are no longer employed by the petitioning employer are granted an additional 60 days to either depart the US or apply for a change or extension of status. This applies to the aliens’ spouse and children as well.

To be concluded: In the concluding article which will be published in the next issue, we will provide additional information on this bill, including Legalization of undocumented aliens.
Courtesy American Immigra-tion Lawyers Association

Michael Phulwani is a prominent attorney admitted to practice law in New York, New Jersey and India. He practices immigration and nationality laws and visa matters in the USA and abroad. He is a frequent lecturer on immigration laws and co-hosts several TV and radio programs on immigration. In this column, Phulwani will discuss frequent problems relating to immigration legislation and answer questions from our readers. All questions should be forwarded to Michael Phulwani, 888 Maywood Avenue, Maywood, NJ 07607.

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