NEW IMMIGRATION BILL CREATING A NEW VISA CATEGORY FOR UNSKILLED WORKERS AND AMNESTY TO UNDOCUMENTED WORKERS

DATE: May 26, 2005

I. INTRODUCTION On May 12, 2005, the U.S. House of Representatives and the Senate announced a new immigration bill, entitled “The Secure America and Orderly Immigration Act of 2005” (“McCain-Kennedy Bill”). If enacted, this legislation would accord legal status to millions of undocumented workers and enable essential workers from foreign countries to enter the U.S. legally through employment with U.S. businesses. Unlike other pending immigration bills, the McCain-Kennedy Bill has a great promise of passing into law since it has support of both important Democratic and Republican Senators and House Representatives. This bill is sponsored by John McCain, a Republican senator, Edward Kennedy, a Democratic senator, Jeff Flake and Jim Kolbe, Republican representatives, and Luis Gutierrez a Democratic representative. The McCain-Kennedy Bill is similar to the “Guest Worker Program”, a pending legislation supported by President Bush in 2004. The important provisions of the McCain-Kennedy Bill are summarized below.


II. H-5A VISA

The McCain-Kennedy Bill would create a new non-immigration visa category, H- 5A, for “essential workers” for occupations needing few or no skills.

(A) A worker from abroad or in the U.S. in legal status may apply for an H-5A visa or visa status by being employed with a U.S. business. The employment would require few or no skills. The worker may maintain his/her status for three (3) years and extend his/her status for another three (3) years. The worker’s family members (spouse and children under age of 21 years) may change and extend their non-immigrant status.

(B) H-5A status applies to not only workers residing in the U.S., but also workers in foreign countries. An applicant for this visa from a foreign country must maintain residence in a foreign country which he/she has no intention of abandoning.

(C) The scope of H-5A occupations is broad, mainly unskilled occupations. The employer must pay workers wages at rates that are prevailing in the place of employment.

(D) An H-5A visa requires the applicant to submit medical examination and fingerprints.

(E) If the applicant, after obtaining H-5A Visa, is laid-off from employment, he/she has a grace period of 45 days to find a new employer in order to maintain his/her H-5A status.

(F) Unlike green card processing, H-5A visa processing, it is expected, would take a fairly short period of time, which would be a matter of several months, rather than several years for green card processing.

(G) The employer for an H-5A worker should be financially strong to pay the worker’s wage. The employer should have in its possession financial information to demonstrate its ability to pay (e.g., bank statements, customers’ list, tax returns, or a letter from the company’s accountant).

(H) After obtaining an H-5A visa, the worker through the employer along with his/her family members may apply for green cards (i.e., U.S. permanent resident status). Alternatively, after four (4) years of H-5A status the worker may selfpetition for green card processing.


III. H-5B VISA

The McCain-Kennedy Bill would create a new non-immigrant visa category, H- 5B, for undocumented workers in the U.S.

(A) H-5B is a temporary visa for undocumented workers. The visa is for six (6) years. The undocumented worker’s family members (spouse and children under age of 21 years) may change their status at the same time.

(B) When applying for a visa petition, the applicant must submit work history and must have clean criminal records.

(C) An H-5B holder may be authorized to work in the U.S. and travel outside of the U.S. Thus, the so-called “3-10 year bar” for illegal aliens leaving the U.S. and attempting to reenter the U.S. will not apply to the adjusted H-5B holders.

(D) Similar to H-5A visa, an H-5B visa petition is expected to be processed a fairly short period of time.

(F) An applicant older than 21 must pay a penalty of $1,000 to obtain an H-5B status.

(G) An H-5B visa holder may apply for permanent residency. The requirements for adjustment of status to permanent residency are the following:

(1) The applicant has been employed in the U.S. during the required period.

(2) The applicant pays a penalty of $1,000 (in addition to the $1,000 paid to get the H-5B visa).

(3) The applicant must submit a medical examination result.

(4) The applicant has paid all taxes during the requisite employment period.

(5) The applicant must be able to read and write ordinary English and have sufficient knowledge of U.S. history and civic matters.

(6) The applicant must pass a new criminal and security background check.

(7) The applicant has complied with draft registration requirements.

Spouses and children are eligible to adjust to green card status with the principal applicant.