Today’s post is from Stacy Morris, a partner in our Litigation Department.
Among the proposed changes to the sweeping immigration reform bill, known as the Border Security, Economic Opportunity and Immigration Modernization Act (S. 744), is a provision aimed at making more foreign workers available for jobs in several sectors, including the construction industry. If passed, the bill would create a new “W” visa classification as of April 1, 2015, which would make a limited number of non-immigrant visas available to lesser-skilled workers.
While enabling U.S. employers to bring foreigners here is nothing new, historically many of those positions have been filled by workers with advanced degrees or by employers seeking temporary help with seasonal positions. The new W visa classification is designed to attract foreign workers with positions requiring less formal education, and specifically excludes occupations requiring a college degree, many computer jobs, and most positions in metropolitan areas with an unemployment rate greater than 8 ½%.
An employer wishing to fill a job under the proposed W visa program would first need to become a registered employer and designate the positions it wants to fill. The employer would then have to advertise the position for thirty days to ensure there are no American workers for the job. Provided the worker passes a criminal background check and meets other qualifications, a W visa would be granted for an initial period of three years, with the option to renew for additional three-year periods. The employer would be required to submit an annual report demonstrating compliance with wage and working condition requirements.
The proposed legislation caps the total number of W visas to 20,000 in the first year, with incremental increases in the second and third years, and a maximum of 75,000 in the fourth year. The current version of the bill also provides that no more than 1/3 of W visas issued in any given year may be issued to workers in construction jobs, and in no event can the number of construction-related W visas exceed 15,000.
This restriction on the number of W visas issued to the construction industry has been the focus of criticism. In Amendment to Visa Program Could Improve Immigration Bill for Construction, Kinsey Cooper explains that ABC recently supported an amendment to S. 744 that would allow equal access to visas for temporary construction workers. According to ABC, the cap contained in the current version of the W visa program is much too small in light of the expected growth of the construction industry, and ABC is concerned that the inherent inflexibility of the visa program will hinder growth.
On May 21, 2013, the bill was moved out of committee, and will go to the full Senate in June 2013. If passed, the W visa program, and any amendments easing restrictions on the annual cap, would benefit the construction industry by making more visas available and providing the construction industry equal access to the proposed new visa classification.