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Summary of Key New Worker Provisions in S. 1639

6/21/07 AILA Doc. No. 07062168. Business Immigration, H-2A Agricultural Worker, H-2B Temporary Worker

Title IV of the Secure Borders, Economic Opportunity, and Immigration Reform Act of 2007 (S. 1639) would create a nonimmigrant Y visa program to allow new workers to enter the U.S. on a temporary basis.

Creation of Y Visa Category (Section 401): Creates a new Y nonimmigrant visa category and folds the current H-2A and H-2B programs into it (Y-2A and Y-2B, respectively).

  • Trigger requirement: The creation of the new Y-1 visa category and the new Y-2B visa category (formerly H-2B) do not go into effect until the enforcement triggers are satisfied.
  • Sunset of Y-1 Visa Program: The Y-1 program will sunset 5 years after the date on which the first Y-1 visa is issued. After the sunset, no alien may be issued a new visa as a Y-1 nonimmigrant.

Numerical Limitations on Y-1 and Y-2B Visas (Section 409)

  • Y-1 visas: 200,000 annual limit on new Y-1 visas (with no escalator to increase the visa cap to meet labor need)
  • Y-2B visas (formerly H-2B): 100,000 annual limit on visas, with an escalator that could raise the limit up to 200,000 to accommodate labor needs

Terms of Admission for Y-1 Visa Holders (Section 402)

Terms for Y-1 Visa Holders Entering without Family Members

  • Maximum of three 2-year periods of admission.
  • Must leave country for 1 year after each two-year period.
  • 2 years here, 1 year home, 2 years here, 1 year home, 2 years

Terms for Y-1 Visa Holders Accompanied by Family Members

  • Maximum of two 2-year periods of admission
  • Family members may accompany Y-1 visa holder for only one 2-year period
  • Must leave country for 1 year after first two-year period.
  • 2 years here, 1 year home, 2 years here.
  • Must show income at 150% of the poverty level and health insurance for the dependents.

Additional Terms for all Y-1 Visa Holders:

  • No extensions of admission period authorized.
  • Y-1 visa holders who overstay are permanently barred from admission to U.S.
  • Y-1 visa holder may change employers if the new position has been certified by DOL.
  • $500 state impact fee ($250 for each dependent if applicable)

Reforms of H-2A Program for Seasonal Agricultural Workers (Section 404)

This section reforms the existing H-2A program for the temporary admission of alien agricultural workers. H-2A aliens are admitted or extended for the period of employment of an approved labor application, not to exceed 10 months. An H-2A alien must remain outside the United States for a period equal to at least 1/5th of the alien's presence in H-2A status before again being admitted as an H-2A alien.

Employer Obligations under Y Visa Program (Section 403)

Employers must petition for a Y nonimmigrant after obtaining certification of the position from the DOL. Certification involves demonstrating:

  • Recruitment of U.S. workers
  • Payment of greater of the prevailing or actual wage paid to U.S. workers
  • Same working conditions as U.S. workers
  • Compliance with other labor protections