In discussions to bring about much-needed comprehensive immigration reform, hard compromises are necessary, but important principles have to be heeded. We think both were key to the ongoing Labor-Business negotiations regarding visas for the lesser-skilled occupations.
On Wednesday I issued a statement of support for the Senate Gang of 8’s construct for a new lesser-skilled visa category. And yesterday the U.S. Chamber’s President and CEO Tom Donohue did the same, reminding us all that “It's time to put politics and narrow agendas aside and do what's right for the country.” The U.S. Chamber believes that the Senate’s blueprint for the new W-visa classification will provide a sound and workable program for the business community.
So, what exactly is the “W-visa?” And how will it work?
Employers hiring for any job that typically does not require a Bachelors degree or higher in order to perform the job duties (according to the Bureau for Labor Statistics, or BLS) would be able to hire foreign workers with the new W-visa if they are unable to locate sufficient numbers of Americans. Under the new W-visa construct, an employer who has recruited and cannot find American workers for a position will be able to register a job opening slot for a three-year period. During this period, they will be authorized to hire foreign workers to fill that slot. No employer may register a job opening slot when unemployment in the metropolitan statistical area (MSA) covering the primary job location for the worker is in excess of 8.5%.
An employer can register a job opening for the W-visa program only after completing recruitment and being unable to locate sufficient numbers of qualified and interested U.S. workers. Once an employer registers a job opening, that position will automatically be listed on a national jobs bank as well as a back-end monitoring system tying that job opening in a specified occupation (and employer job title) to the employer. At that point, a foreign worker can register for a specific job opportunity and, if qualified for a visa, may enter the United States. While no foreign worker can enter the U.S. without heading to a specific registered job with a specific registered employer, the foreign worker is not tied to that specific employer in order to maintain status. As a result, foreign workers will be treated just like American workers – and will have the ability to move around within the labor market to other registered employers with job openings. W-visa holders will also be permitted to have dual intent, meaning that some number of qualifying W-visa holders will be eligible after a period of years to request adjustment of status to permanent resident status after meeting certain merit-based criteria in a points system.
Wages paid to the foreign worker will be the greater of actual wages paid to similarly situated Americans working for the employer and prevailing wages determined by the Department of Labor based on levels of wages in the occupation in the MSA commensurate with experience, training, and supervision required for the job. This wage level data is already available from BLS and has been used for high skilled immigrants since 1990.
Employers hiring W-visa holders are subject to mandatory participation in a jobs bank for at least the job openings registered for possible W-visa holders. In addition, the number of authorized W-visa slots will be referenced in E-Verify, so an employer may only verify work authorization of the number of W-visa holders it is so authorized to employ. Lastly, employers will be required to use a real-time reporting system to confirm when workers start and end their employment on a W-visa.
The Senate approach creates a new Bureau of Immigration and Labor Market Research within U.S. Citizenship and Immigration Services. The bureau will have a politically appointed head, and be staffed by professional economists, demographers and other social scientists. The bureau has four specified roles:
- Conduct research and prepare reports regarding immigration and immigrants in the U.S.;
- Make an annual recommendation as to whether the W-visa cap should go up or down and at what percentage change from the prior year’s cap, counting 20% toward the cap fluctuation formula;
- Engage in public rulemaking to develop a methodology and then identify any lesser-skilled occupational shortages that should given priority when the annual cap is met; and
- Expand the list of acceptable recruitment steps, if needed to ensure it is modernized and up to date.
There will be 20,000 W-visas available to employers during the first year, with an increase to 35,000, 55,000 and then 75,000 in the fourth year of the program. Thereafter, the cap number will fluctuate based on a formula grounded in economic indicators – going up to a ceiling of 200,000 new lesser-skilled foreign workers annually. The formula mandated by Congress takes into account the annual rate of change in national unemployment and the jobs opening rate, as well as employer demand for W-visas, and a bureau recommendation regarding the percentage change to the overall W-visa cap.
Employers seeking workers in areas with bureau-designated shortages will get priority if the annual cap is met. However, the program will have a “safety valve” for employers with job openings in a metropolitan area where unemployment exceeds 8.5% or if the annual W-visa cap has been met. Through the safety valve, an employer can request to register a job opening as long as the employer completes an enhanced recruitment effort with more recruitment steps and pays a premium wage.
Construction Industry Employers
There is a limited construction program. While the same wages and recruitment requirements apply for construction, employers engaged principally in construction may only hire workers in occupations that require less than one year of training or experience and do not have access to the safety valve. Also, employers engaged principally in construction will only have access to 33% of the total visas in the program each year, or 15,000, whichever is fewer.
Although the numbers for a new W-visa program will be relatively small, it creates a workable architecture for a visa system employers can use when insufficient numbers of U.S. workers are available for lesser-skilled jobs after recruitment. Establishing the lesser skilled W-visa program is one vital component of comprehensive immigration reform. Reform also includes border security, improvements to high skilled immigration, creation of a workable visa program for production agriculture, establishing a reliable and mandatory employment verification system, and a path toward legalization for the undocumented.
The Congress and the public will have the final say in how our broken immigration system is reformed. As U.S. Chamber President and CEO Tom Donohue said, “We will continue to work with members of both parties to enact comprehensive reform that meets the needs of our economy and our society.”