For the last several years, Congress has wrestled with passing legislation to keep the government from shutting down before the end of the fiscal year on September 30. This election year, Congress once again finds itself facing a funding deadline, and there are several immigration programs that will require congressional action to avoid expiring. Four of these programs have usually been linked together legislatively and were last authorized for three years in 2012. In an end-of-year flurry of activities last December, the programs were extended through the end of the current fiscal year. A fifth and new immigration provision related to H-2B visas was also included in last year’s funding bill. In order for these programs to continue, they must be reauthorized by the end of September. Here is a summary of these programs and the implications if they are allowed to expire.
The E-Verify program, created in 1997, is an internet-based program designed to prevent undocumented immigrants from obtaining employment illegally in the country. Formerly known as the Basic Pilot Program, E-Verify compares information from an employee’s Form I-9 (the form the employee and employer fill out to confirm employment eligibility) to data from the Department of Homeland Security and the Social Security Administration to verify they match. Use of the program is voluntary for most employers, but as of 2007, all federal contractors and vendors are required to use E-Verify and several states mandate the use of E-Verify by employers in their states. E-Verify is currently used by more than 600,000 employers nationwide, which represents around 8 percent of the total number of employers in the country.
E-Verify is currently used by more than 600,000 employers nationwide, which represents around 8 percent of the total number of employers in the country.
While the program has its critics on the right and the left, the comprehensive immigration reform bill that passed the Senate in 2013 would have mandated that all employers use the system(although the bill also would have legalized a majority of the unauthorized immigrants currently in the United States). Stand-alone measures that would mandate E-Verify have also failed to pass. However, reauthorization of the current voluntary program is relatively noncontroversial in Congress and is likely to be approved.
EB-5 Regional Center Program
The EB-5 program grants foreign investors the opportunity to acquire legal permanent residence if they invest $1 million in a commercial enterprise (or $500,000 if the business is in a high-unemployment or rural area) and create at least ten jobs for U.S. workers. To incentivize use of the program, Congress created the EB-5 Regional Center Program in 1993 as a pilot program to provide investors with an alternative investment channel to the original program. The program was reauthorized in 2012 for three years, and in the absence of agreement on legislative changes in 2015, the program was reauthorized, unchanged, until the end of this fiscal year. If the pilot program is allowed to expire, investments and projects underway would be in jeopardy if they aren’t grandfathered in, and all projects going forward would have to meet the stricter job creation requirements of the original program.
The main advantage of the Regional Center Program for investors, other than the lack of a direct management requirement, is the ability to meet the job creation requirement through indirect jobs. The Regional Center Program has become synonymous with the overall visa category and is responsible for most of its growth, 97 percent of the 10,000 visas issued last year were issued through the Regional Center Program. However, the program has come under criticism for overly favoring wealthy urban areas over rural and economically depressed regions due to how the “targeted employment areas” are designated by states. In addition, there have been charges that investor funds aren’t properly vetted to ensure they are not from unlawful sources, and the investments are often not subject to disclosure rules of the Securities and Exchange Commission. Critics also charge that the evidence of job creation in the program is lacking or based on unreliable methodologies.
97 percent of the 10,000 visas issued last year were issued through the Regional Center Program.
Various bills have been introduced to address these issues, including a bipartisan bill by Senate Judiciary Committee Chairman Sen. Charles Grassley (R-IA) and Ranking Member Sen. Patrick Leahy (D-VT) and another draft bill released by House Judiciary Chairman Rep. Bob Goodlatte (R-VA) last week. However, various stakeholders in the EB-5 program have objections to these bills. Grassley and Leahy recently wrote a letter to Senate Majority Leader Mitch McConnell (R-KY) arguing that if their bill could not be passed the program should expire, and a committee markup scheduled by Goodlatte for this week on his bill was postponed. The lack of consensus about how to “fix” the program makes its future uncertain.
Conrad 30 Waiver Program for International Medical Graduates
Created in 1994 and last reauthorized in 2012, the Conrad 30 program allows each state’s department of health to sponsor up to 30 international medical graduates to waive a home residency requirement if they serve in a medically underserved area. The program (named after former Sen. Kent Conrad of North Dakota) was designed to improve the lack of physicians in many urban and rural areas of the United States. Many foreign doctors complete their residencies in the United States under a temporary visa called a “J-1 visa.” However, many of these visas require the doctors to leave the United States for two years before they can return on another visa or immigrate. By allowing states to waive this requirement, it allows them to attract more physicians to needed populations. The program is largely supported across the aisle and its extension is likely non-controversial.
Special Immigrant Religious Workers
The Special Immigrant Religious Worker program allows clergy and lay workers in religious occupations and vocations to immigrate to the United States or adjust status in the country in order to perform religious work in a full-time compensation position. This type of visa, established in 1990 and reauthorized in 2012 and 2015, falls under the EB-4 classification of visas. The overall category has a cap on non-minister religious workers of five thousand per year, and this portion of the program is also scheduled to sunset as of September 30, 2016.
There have been concerns about fraud practices in the program for non-minister workers over the years, including the creation of fraudulent religious groups and sponsorship of workers who do not actually perform religious duties. Regulatory changes in 2008 were adopted to address these charges, although some cases of fraud continue to come up annually. Currently the program does not face significant opposition and is likely to be extended.
H-2B Returning Worker Provisions
Last year, in the end-of-year appropriations bill, Congress authorized the government to exempt from the annual H-2B cap (for seasonal temporary work) those workers who have been in the United States on an H-2B visa in one of the three previous years. The annual cap was reached for the current fiscal year in May 2016 and without the returning worker provisions, many summer-season employers would not have access to H-2B workers.
With the expectation of a continuing resolution to fund the government for the next fiscal year, the fate of the provision is unknown.
In June 2016, the House Appropriations Subcommittee on Homeland Security included a renewal of this provision in the FY2017 Homeland Security Appropriations bill. However, the bill has not yet had a vote on the House floor. With the expectation of a continuing resolution to fund the government for the next fiscal year as opposed to individual appropriations bills, the fate of the provision is unknown.