Shortly after being inaugurated, President Biden introduced the U.S. Citizenship Act of 2021 (Act), a 350-page immigration reform bill. On February 18, 2021, Democratic Senator Bob Menendez sponsored the bill in the Senate, while Democratic representative Linda Sanchez introduced an identical version in the House of Representatives.
The Act makes many changes to immigration law, some of which directly impact employers.
Section 3 of the Act replaces the term “alien,” used to refer to those persons not citizens of the United States, with the word “noncitizen” in all relevant sections of the United States Code. For existing regulations and other administrative documents currently in use that reference alien, that word is deemed to mean noncitizen.
Pathway to Citizenship
The Act outlines an expedited path to citizenship for different categories of people. These include:
- Children entering the United States as undocumented children (Section 1103).
- Nationals of those countries with situations rendering it unsafe to return them there – these persons have temporary protected status (Section 1104).
- Undocumented immigrant farmworkers (Section 1105).
These individuals, subject to specific requirements, may be immediately eligible for green cards.
The Act also provides an eight-year path to citizenship to those persons deported after January 19, 2017, with residence in the U.S. for at least three years before the deportation, and who meet criteria related to family unity or other humanitarian reasons.
Use of Technology
The Department of Homeland Security is required to draft plans optimizing the use of technology at ports and the southern border. For example, high-throughput scanning at ports (Section 2301) is encouraged, while at the southern border, DHS is authorized to implement the “the deployment of technology between ports … of entry that focuses on flexible solutions that can … expand the ability to detect illicit activity.” (Section 2302).
Investment in Central America
A significant source of undocumented immigrants is from Central American nations. The Act requires several new initiatives to address this concern:
- Improvement strategy. Section 2101(a) requires the Secretary of State to implement the four-year “United States Strategy for Engagement in Central America.” The goal of this endeavor is to advance reforms in Central America and address the “key factors” contributing to the departure of families from these countries.
- Refugee capacity. Section 2201(a) directs the Secretaries of State and Homeland Security to “strengthen the domestic capacity of countries in the Western Hemisphere to … accept refugees for resettlement.”
- Additional pathways. Section 2204 creates country-specific refugee processing centers to facilitate “lawful admission to the United States.”
The Act contains several measures to help migrant populations, including:
- United Nations cooperation. Section 2202 directs the Secretary of State to work with the United Nations High Commissioner for Refugees to accelerate the processing of refugees. It also strengthens systems to ensure that they receive “due process … and adequate information about [their] rights.”
- Adjudication. The Act, at Section 2202(a), also provides for strengthening the “domestic capacity to … adjudicate asylum claims.”
- Filing deadline. Section 4301(5)(D)(i) eliminates the requirement that asylum seekers file their applications within one year.
- Additional protections. Provisions also provide for expanded legal representation and alternatives to detention for vulnerable migrant populations.
- Border communities. Section 2306 establishes the Border Community Stakeholder Advisory Committee. Stakeholders live or conduct activities on or near the border. They include landowners, business leaders, local officials, Tribe members, and civil rights organizations. The committee is entitled to consultation from the Secretary of Homeland Security on issues related to border security and immigration enforcement.
Employment-Related Provisions and the Consequences for Employers
The Act contains several measures that impact employers – both positive and negative.
Positive Aspects of the Act
Many provisions increase the pool of immigrant workers.
Title III of the Act, “Reform of the Immigrant Visa System,” increases the number available to prospective employers.
First of all, the level or “cap” of worldwide employment-based visas is increased to 170,000 from the previous 130,000. Added to this number are the unused visas from 1992 to 2020. Furthermore, under current law, spouses and children of green card holders are counted under the cap. Title III changes this by providing these spouses and children with their own green cards, which don’t count against the 170,000 cap.
Second, those with a Ph.D. in science, technology, engineering, and math (STEM) no longer count towards the limit. The law requires that the STEM doctoral degree was earned in the United States.
Title III also creates a “Regional Economic Development Immigrant Visa Pilot Program.” It allows the Secretary of Homeland Security to:
“establish a pilot program for the annual admission of not more than 10,000 admissible immigrants whose employment is essential to the economic development strategies of the cities or counties in which they will live or work.”
The pilot program lasts five years.
H-1B visas, which are granted to foreign workers temporarily to be employed in specialty occupations, are also impacted. Title III allows the Secretary of Homeland Security to establish procedures changing the allocation system of H-1B visas from a lottery to a wage-based system.
Unfavorable Aspects of the Act
Section 5105, “Prohibition of Discrimination Based on National Origin or Citizenship Status,” is of potential concern to employers.
Expanded Employer Liability for Discrimination
The Immigration and Nationality Act, at 8 U.S.C. section 1324b(a), currently provides that:
“It is an unfair immigration-related employment practice for a person or other entity to discriminate against any individual (other than an unauthorized alien…) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment or the discharging of the individual from employment …in the case of a protected individual … because of such individual’s citizenship status.”
Per 8 U.S.C section 1324b(3), a “protected individual” is a citizen of the United States, permanent residents, and approved refugees.
Section 5105 of the Act modifies the definition of a protected individual to include all noncitizens that have employment authorization, like those with employment authorization documents or those visa holders sponsored by employers. With this change, these additional individuals are protected against the unfair immigration-related employment practice of discrimination based on a person’s national origin or citizenship status. Many examples of unfair immigration-related employment practices involve the employment verification system currently in force pursuant to the Immigration and Nationality Act. Such examples include:
- Denying worker employment or post-employment benefits based on the use of the employment verification system (System).
- “Misus[ing] the System to discriminate based on national origin or citizenship status.”
- “Requir[ing] an employee or prospective employee to use a self-verification feature of the System or provide, as a condition of employment, and self-verification results.”
- Using a different type of employment verification system.
Another unfair immigration-related employment practice is the requirement that a person submit documentation other than that required under current I-9 rules.
Penalties for Violation of Section 5105
Penalties for unfair immigration-related employment practices are:
- First violation: $2,000 to $5,000 for each individual whose rights have been violated.
- Second violation: $4,000 to $10,000 per individual.
- Subsequent violations: $8,000 to $25,000.
These amounts are to be adjusted periodically for inflation.
What is Not Included in the Act?
The Act focuses on reforming permanent employment-based immigration. However, it does little to solve the issues facing the nation’s temporary employment-based visa system.
The Act has provisions both promising and concerning to businesses interested in hiring foreign workers. As the bill works its way through Congress, these provisions will likely change in scope and applicability.