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Policy Analysis

Summary of Cornyn’s Border Security and Immigration Reform Act of 2003

Bill calls for:

• New guest worker program
• Adjustment of status for some undocumented currently in U.S. to non-immigrant guest worker status.
• Possible permanent residence for some guest workers

Quick summary

Guest Worker Program:

• Worker eligibility and application process would be decided by each home country
• Guest workers are eligible to apply for permanent residence after 3 years but approval is based on points for employer sponsorship, educational level, English proficiency, promotions or pay increases during employment, payment of taxes, and subject to new quota system tied to “economic determinations”
• Employer eligibility for guest workers is mainly based on their declaration of need and efforts to find local workers
• Guest worker must sign “work contract”
• Labor protections consist of minimum wage, hour, safety, workers comp; violations could result in worker going to another guest worker employer
• Guest workers’ Federal taxes are deposited into separate account and paid to worker after s/he permanently leaves Guest Worker Program and returns to home country

Guest worker status for undocumented currently living in U.S.:

• Would have 1 year from when law passes to apply for Guest Worker status
• Must have been in the U.S. on day the law passes
• Must be employed at the time s/he applies for Guest Worker status
• That employer would need to provide declaration confirming the worker’s employment
• Must show s/he is eligible for Guest Worker status, using criteria developed by their home country
• Employer sanctions would be increased after one year application period ends

Details re New Guest Worker Program

A. General description of Program including process for workers:

Separate Guest Worker Program agreements are made between the U.S. government and individual foreign countries wishing to participate.

To participate, each foreign country must agree to:

• develop the eligibility requirements for its own nationals, except that no one under 18 (unless accompanying a guest worker parent) or convicted of 1 felony or 3 misdemeanors in U.S. can be eligible,
• establish its own application procedures,
• establish a training program for its Program participants,
• provide health care for Program participants,
• monitor the return of its nationals, and
• accept the return of its workers from U.S.

B. Periods of stay for Guest Worker:

Seasonal: up to 270 days in a calendar year; can reapply each year.

Non-seasonal: up to 12 months; can apply for extensions for maximum period of 3 years then would have to return to home country for at least 6 months before reapplying. Non-seasonal workers may bring their spouse and minor children only if workers’ income level is at least 125% of Federal poverty guidelines.

C. Adjustment from Guest Worker to Permanent Resident:

After 3 continuous years as Guest Workers, and only after returning to home country, Guest Workers will be given “priority for” adjustment to permanent residence using a point system in which workers’ rating is based on:

• An employer sponsor,
• Promotions or pay increases during employment,
• Payment of taxes,
• English-speaking proficiency
• Educational level, and,
• No illegal activity.

There would be an annual quota for number of guest workers granted permanent residence. Quota is based on “economic determinations made by DOL and the number of participants in [this] guest worker program”.

D. Process for employer to get Guest Workers:

Before a Guest Worker visa can be issued, the employer must file application including:

• Request for attestation (confirmation) from DOL that there are not enough local workers and no adverse effects on other workers. NOTE that don’t need to wait for response from DOL,
• Description of type and location of work; limited to temporary, full time work,
• Period of time worker is needed,
• Wages: no less than minimum,
• Method of transportation, if necessary,
• Statement that job was offered to local workers, incl ad in local publication, and
• Insurance: workers comp and vehicle.

Employer application is reviewed “only for completeness and obvious inaccuracies” before “certifying” employer; application is not investigated or even reviewed for authenticity of claims. Certified employer than gets list of authorized workers who must sign a “work contract” agreeing to “comply with all U.S. laws”; employer agrees to give DOL access to the workplace.

E. Labor violations; other rights:

Employer found to have violated wage, hour, blacklisting and/or safety rules can be barred from Guest Worker Program for 10 years but generally only for 3 violations within 3 consecutive years. It appears that complaints of violations, including retaliation, must be made by worker. There would be some process by which worker could “seek other appropriate employment in the U.S.” for the remainder of the worker’s guest worker visa period. Disputes must be adjudicated within 30 days; if employer wins, s/he gets a new guest worker.

Guest workers would have right to travel.

F. Guest Worker Investment Accounts:

All Social Security Retirement, Survivors and Disability taxes paid by guest worker are to instead be deposited into an individual “guest worker investment account”. Funds in this account will be given to worker only after the worker “permanently” leaves the guest worker program and returns to his/her home country. Treasury Department manages and invests these accounts, and will charge a .03 percent administrative fee; funds are tax exempt.

Details re adjustment for undocumented currently in U.S. to guest worker status

Undocumented immigrants in the U.S. on the date this law passes would have one year in which to apply for this Guest Worker Program. Applicant would need to show that s/he is eligible for this Guest Worker Program, and be employed at the time of application. The required employer application described above would instead consist of a declaration confirming that worker’s employment. Employer sanctions would be enhanced for violations after the one year application period, including permanent exclusion from this Guest Worker Program.