May 07 2013
U.S. Senator Orrin Hatch (R-Utah), current member and former Chairman of the Senate Judiciary Committee and current Ranking Member of the Senate Finance Committee, today filed 24 amendments to the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744), including, but not limited to, amendments to strengthen law enforcement components of the bill, improve the high-skilled worker provisions to make it more market-based, strengthen the ability to collect back taxes of newly legalized individuals, and ensure that health insurance subsidies available under the Affordable Care Act (ACA) are only available five years after an individual gains legal status.
“These amendments are reasonable, common-sense fixes to the bill that ensures taxpayers are protected and that our economy has access to the workers it needs to compete in a global economy,” Hatch said. “I appreciate the hard work my colleagues have done in putting this complicated bill together, and I look forward to working with them to implement these needed changes to the bill moving forward.”
Below are brief descriptions of each amendments with an explanation of purpose. Click the amendment title to view a PDF of each amendment.
Hatch1 – An amendment to adjust the Criminal Code to make clear that defendants who possess or otherwise use identity information not their own without lawful authority and in the commission of another felony is still punishable for aggravated identity fraud, regardless of the defendants’ “knowledge” of the victim.
The Supreme Court decision in the case of Flores-Figueroa v. United States undermined prosecutors’ longstanding practice of using the aggravated identity theft statute by requiring prosecutors to prove that a defendant knew that he or she was using a real person’s identity information, as opposed to counterfeit information not connected to an actual person.
This amendment clarifies that defendants who possess or otherwise use someone else’s identity with that person’s consent will be charged with a crime, regardless of their
Hatch2 – An amendment to establish the aggravated penalty of cultivating marijuana on federal lands and mandates that it be served consecutively to any term of imprisonment for the underlying offense of manufacturing and distribution of a controlled substance (21 USC 841). Additionally, once the defendant has been convicted of cultivating marijuana on federal lands, this section directs the United States Sentencing Commission to implement a two level sentence enhancement for the following special offense characteristics: 1) the use and/or release of a poison, chemical, or other hazardous substance to cultivate or manufacture controlled substances on Federal land; 2) the diversion or tampering of a water source in furtherance of the grow operation; 3) the use or possession of weapons while cultivating marijuana on federal lands. This section also clarifies current law (21 USC 841(d)(1)) to include the assembling, maintaining, or placing, of a “boobytrap” on federal property in furtherance of a marijuana cultivation operation.
Outdoor marijuana cultivation by Mexican drug trafficking organizations is causing increasing environmental damage, especially on publicly owned lands. Mexican cartels are largely responsible for the spike in illegal marijuana cultivation. Growing marijuana in the U.S. saves traffickers the risk and expense of smuggling their product across the border and allows gangs to produce their crops closer to local markets. Illegal alien workers are smuggled in from Mexico to serve as laborers and provide security to the grow plots. Many of the plots are encircled with crude explosives and are patrolled by armed guards.
Hatch3 – An amendment to require DNA identification for every adult immigrant seeking RPI status (age 18 and over). The amendment also provides for permanent retention of the DNA sample, with the ability to apply for expungement after six years, so long as there are no further qualifying arrests of convictions.
Inclusion of a DNA profile as part of any background check will ensure that decisions regarding residency status are made with fullest search of criminal activity and identification available.
Additionally, because the DNA sample is checked against the national database of unsolved crimes, matches on the database identifying perpetrators in unsolved crimes will have an immeasurable impact on victims who still seek justice, and for those wrongly accused.
Hatch4 – Strikes “litigation or a force majeure” as part of the Secretary’s exceptions to fully implementing E-Verify, a visa exit system, and border security.
This amendment removes the Secretary of Homeland Security’s litigation or “force majeure” exception from having to comply with the border security, E-verify, or visa exit system requirements.
Hatch6 – An amendment to establish, within two years of enactment, a mandatory biometric exit data system in the 10 U.S. Core 30 airports that support the highest volume of international air travel. Five years after enactment, the GAO will provide a study on the effectiveness of the biometric exit data collection at these sites. At year six, unless Congress acts, a mandatory biometric exit data system will be established at all remaining U.S. international Core 30 airports and the GAO will provide a plan for the expansion of the biometric exit system to major sea and land entry and exit points within the United States.
Biometric data provides the government with certainty that travelers (and not just their travel documents) have or have not left the country, allowing for the accurate identification of those that who have remained in the U.S. beyond the legally allowed periods.
Hatch8 – Amends the Immigration and Nationality Act to authorize additional visas for well-educated aliens to live and work in the United States, and for other purposes.
This amendment is modeled after legislation Hatch introduced in January (the Immigration Innovation Act, or “I-squared”) that focuses on areas vital to ensuring the United States can maintain its competitiveness in the global economy: the quantity of employment-based nonimmigrant visas (H-1B visas), allowing for their growth depending on the demands of the economy while making reforms to protect workers; increased access to green cards for high-skilled workers by expanding the exemptions and eliminating the annual per country limits for employment based green cards; and reforming the fees on H-1B and green cards so those fees can be used to promote American worker retraining and education.
Hatch9 – To increase the labor certification fee required under section 212(a)(5)(A) of the Immigration and Nationality Act and to use these fees to enhance the economic competitiveness of the United States by improving science, technology, engineering, and mathematics education and training in the United States.
This amendment increases the green card fee from $500 to $1K, with funding allocated as follows: 70% to states to develop and implement STEM activities to serve students, including students of underrepresented groups such as minorities, economically disadvantaged, and females; 20%, STEM Capacity Building at Minority-Serving Institutions; 5%, Workforce Investment Act set-aside for states to serve veterans and spouses, including the development of license and credentialing programs; 3%, American Dream Accounts, competitive grants to support innovative and comprehensive partnerships that focus on science, technology, engineering, and mathematics (STEM) careers and provide financial support and preparation for students as they plan for their college education; and 2%, Department of Education administration of the program
Hatch10 – An amendment to increase the annual allocation of H-1B visas to 115,000 and installs a real-time market-based escalator that allows additional visas to be granted within the same fiscal year and allows the cap to fall when the demand for visas is low (but not below the 115,000 floor). Depending on how quickly the cap is met in a given fiscal year, the cap can automatically increase by up to 20,000 visas per year. Likewise, if the cap is not met in a given year, it can automatically decrease by no more than 20,000 visas per year. This amendment preserves the bill’s 180,000 H-1B cap.
This year, U.S. Citizenship and Immigration Services received about 124,000 applications in five days for only 85,000 available H-1B visas. In other words, nearly 40,000 high-skilled workers offered jobs in the United States are out of luck because additional H-1B visas are not available in this fiscal year.
Hatch11 – An amendment that sets forth specific requirements for employers needing to send a specialized knowledge worker to a client site.
As currently written, the bill would forbid the placement of an L-1 intracompany transferee on a client site – or even contracting for the services of an L-1 – unless the employee will be controlled and supervised by the ending employer. It would also require the receiving employer to attest that it has not displaced a U.S. worker in the 90 days before (or 90 days after) the sending employer’s L petition.
Businesses across the American economy depend upon the services of U.S.-based multinationals to provide sophisticated services, in circumstances that require placement of the multinational’s employees at the client’s site. The client needing those services is not going to be willing or able to make attestations like this about their own workforce decisions, requiring detailed comparisons with the particular qualifications of the sending company’s employees. By requiring an attestation that would in practical terms be impossible to get, the provision would have the unintended consequence of outright prohibiting any placement of specialized knowledge workers on client sites.
Hatch12 – An amendment that requires H–1B petitioners to conduct a good faith recruitment of United States workers in accordance with industry standards.
The base bill would require any employer to develop a new methodology and documentation system to prove the position-by-position results of recruitment for every job filled by an H-1B worker, because every employer must attest that it has always hired any U.S. worker “equally qualified” to the H-1B workers.
The amendment would place the obligation to demonstrate to DLS that the jobs have been offered to U.S. workers where it more properly belongs: on H-1B dependent employers.
Hatch13 – An amendment to prohibit H-1B petitioners from displacing specific U.S. workers with H-1B nonimmigrants.
The current non-displacement language would require non H-1B-dependent employers to attest that they have not displaced a U.S. worker in the 90 days preceding the filing of the H-1B petition, and will not do so within the 90 days afterward. There is an exemption for situations in which the number of employer’s U.S. worker employees in the same “job zone” has not decreased in the prior year. While there is a potential and complex safe harbor in the bill if the number of U.S. workers in the same “job zone” as the H-1B has not decreased during the previous one-year period, that safe harbor has no bearing on whether a U.S. worker was fired and replaced by an H-1B visa holder, which is the assumed intention of the provision.
The amendment would prohibit very directly, for every H-1B petitioner, the practice that the bill’s drafters intended to prohibit: the firing of an American worker in order to hire an H-1B worker.
Hatch14 – An amendment to encourage other countries to provide reciprocal treatment to the spouses of United States workers stationed in those countries by authorizing the Secretary of Homeland Security to suspend employment authorization for spouses of H–1B nonimmigrants coming from countries that do not permit the employment of similar situated spouses in their countries.
Currently, the bill allows spouses of H-1B workers to be employed, but only if they come from countries that provide reciprocal treatment to spouses of Americans working with analogous visas in that country. This would deny an important benefit to nationals from many countries that are crucial sources of STEM and other talent. This could limit the competitiveness of U.S. employers in the market for global talent.
The amendment encourages other countries to provide reciprocal treatment to U.S. workers stationed abroad. This revision would give the State Department significant leverage in encouraging such arrangements through the diplomatic process.
Hatch15 – An amendment to strike the outplacement limitation with respect to the definition of H-1B dependent employer.
This amendment eliminates potential confusion by making clear that the application of the “dependent employer” definition is not limited to the referenced outplacement provision.
Hatch16 – An amendment to clarify that the new restrictions on hiring H-1B nonimmigrants focus on the initial hiring decision.
This amendment makes clear that the new restrictions on H-1B hiring are focused where they properly belong – on the initial hiring decision – and do not require new recruitment and related attestations each time an existing employee must file for an extension.
Hatch17 – An amendment to modify the definition of covered employer.
Companies that cannot find sufficient numbers of U.S. workers to fill professional jobs and hire H-1B workers are penalized if it so happens they have more than 15% of their workforce as H-1B workers. These employers – even if they are in the process of sponsoring foreign workers to remain in the U.S. indefinitely by further testing the U.S. labor market – are treated as though they are doing something inappropriate.
The amendment ensures intending immigrants are counted as U.S. workers for limited purposes, in those situations when an employer is creating permanent jobs in the U.S. but cannot find sufficient numbers of highly skilled U.S. workers with the specific skill set needed.
Taxes, Federal Welfare and Public Benefits
Hatch5 – An amendment to require the same public charge requirements (not less than 125% of the federal poverty rate) for both RPIs and green card applicants, and strikes “average” from the income consideration.
Currently, the bill requires registered provisional immigrants to show that their average income is at least 100% of the poverty rate when they want to extend their RPI status. Under current law, a sponsor must show that he or she has an annual income of not less than 125% of the federal poverty level.
This amendment ensures that language in this bill regarding public charge requirements have parity with current law.
Hatch21 – An amendment to ensure compliance with federal welfare and public benefits law.
Last July, the Obama Administration released guidance to states granting the Department of Health and Human Services with unprecedented authority to waive federal welfare work requirements. This waiver authority also permits the Secretary to direct federal welfare dollars to individuals and families that otherwise would be ineligible for federal welfare dollars, including certain immigrants.
This amendment ensures that federal dollars cannot be used for purposes that were not contemplated by the 1996 welfare reform law.
Hatch22 – An amendment to modify provisions relating to the payment of back taxes to include all income and employment taxes owed, and for other purposes.
As currently written, Registered Provisional Immigrant (RPI) applicants are not required to have satisfied their lawful federal tax obligations during any period of their U.S. residency, unless the Internal Revenue Service (I.R.S.) has already discovered that they haven’t been paying their taxes.
This amendment requires that Registered Provisional Immigrant applicants must show that they have actually paid their back taxes, and that they stay current once they are Registered Provisional Immigrants, so that American taxpayers are made whole.
Hatch24 – An amendment to precludes crediting of quarters of coverage for unauthorized employment.
Treatment of unauthorized past employment for determining quarters of coverage for old-age, survivors, and disability insurance is not clear as the legislation is currently written.
To preserve the integrity of the Social Security system, this amendment makes clear that any unauthorized employment does not count as a period of covered employment in determining insurance eligibility.
Hatch23 – An amendment to provide for the application of a 5-year waiting period for certain eligibility for tax credits and cost sharing subsidies under the Patient Protection and Affordable Care Act.
Under the current bill, the five-year waiting period to access federal means-tested programs is extended to RPIs and blue card status (temporary agricultural workers), however the five-year waiting period does not apply to Obamacare subsidies.
The amendment applies the five-year ban on Obamacare subsidies for RPIs and blue card status.
Hatch7 – An amendment to terminate the Amerasian Homecoming Act visa program.
Children born to U.S. servicemen fathers and Vietnamese mothers during the Vietnam War currently immigrate to the United States through both the 1982 Amerasian Immigration Act (AIA) and the 1988 Amerasian Homecoming Act (AHA). Because of serious problems in the AHA program identified by Department of State through our Embassy and Consulate in Vietnam, and due to the existence of an alternative Amerasian visa program, closure of the AHA program is recommended.
There is documentation of serious and repeated abuse of the AHA program, as well as security loopholes that expose the United States to unwarranted risk. Additionally, subjective adjudication standards, resource burdens, and systematic defrauding of the US government make this program unsustainable. At the same time, the specific historical circumstances that prompted creation of the AHA no longer exist.
Hatch18 – An amendment to prohibit the intentional employment discrimination based on national origin or citizenship.
The bill creates several new types of unfair immigration-related employment practices, most of which are things that an employer could do inadvertently. For each of the 10 new discrimination protections the bill contains no intent requirement, despite the fact that the Justice Department has required intentional discrimination for any unfair immigration-related employment practice charge since 1996.
This amendment ensures intentional discrimination is rooted out of the workplace by retaining the expansion of unfair immigration-related employment practices in S. 744, but continues the current requirement of the law regarding intent.
Hatch19 – An amendment that modifies the attestations required for registered positions for W nonimmigrants.
Considering all the statutes, regulations, executive orders, and administrative case decisions that govern the workplace, the use of “substantially comply” is too vague.
This amendment ensures that employers are certain as to what they are attesting to.
Hatch20 – An amendment to clarify the individuals who may submit complaints in connection with W nonimmigrants.
As currently written, the complaint process established under Section 220(m) allows any person to file complaints with the Secretary regarding two very broad areas of inquiry: (1) an employer’s alleged failure to meet a requirement of the W visa program; or (2) the layoff or non-hiring of a U.S. worker. There are two reasons why this subsection needs to be amended. First, because “any person” is able to file a complaint, this opens the door for labor unions, worker centers and advocacy groups to file unfounded nuisance complaints against targeted employers. Second, the ability to file a complaint is not tied to any injury or grievance. This not only raises standing concerns, but also exacerbates the problem of nuisance complaints.