The new "W" visa for essential workers under the 2013 Immigration Reform Act

April 4, 2013

 

This past weekend saw a breakthrough in negotiations between the US Chamber of Commerce and several national unions, over the creation of and (primarily) the number of new “W” visas that will be created by the highly anticipated reform legislation that has been negotiated by the so-called “Gang of Eight” in the US Senate.    This W visa will be available for essential workers who will fill year round jobs that do not require a college level education (construction, manufacturing, service industries, etc.).

 

The W visa appears to be a compliment to the part of the reform bill that will allow millions of undocumented workers now in the US to apply for legal status.   The majority of those essential, undocumented  workers would register for temporary legal status, with the possibility of obtaining permanent resident status some ten years later, and then ultimately citizenship after 3 years as a permanent resident.   These workers so far do not have a name for their future legal status, but whatever it is, they will continue to fill millions of jobs that US workers are not willing or available or  able to do. 

 

The W will be  a complimentary visa, because it is designed to address future labor needs (“future flow”) that employers will need, after the registration process is complete and the current undocumented population is entered into the system.  Under the Senate proposal, the W program will not be activated until April 1, 2015.   The Gang of Eight appear to want to let the labor market settle down in the next two years, and then let the new W visa system accommodate the future demand that employers will have going forward.

 

The proposed “W” visa contained in the Senate bill has some important aspects:

 

1.       The number of these visas will start at 20,000 the first fiscal year, with 35,000 the next year, then 55,000 the next and 75,000 in the fourth.   Beginning in the fifth fiscal year, the number will vary depending on a statistical formula.

2.       The total of such W visas cannot exceed 200,000, and can never be less than 20,000, in a given year.

3.       A separate provision will allow a qualified employer to hire an appropriate W worker, if the annual cap has been reached, upon paying a special fee.  No comment yet on whether anything else would have to be proven to make such a hire.

4.       Employers of such W workers will have to pay the employee the prevailing wage or the actual wage the employer agrees to pay, whichever is higher.

5.       The bill will create a new bureau within USCIS to implement the formula and determine the number of W visas available each year.

6.       The bureau also will publish a labor shortage list, and shortage occupations will have priority for the available W visas.

7.       However, it appears that no more than 15,000 visas will be available for the construction industry in a given year, regardless of the extent of a shortage for that industry.

8.       W employees would be able to accept a job offer from another employer that is certified as eligible to use the W program, and once the W worker left the first job, he or she would have 60 days to find another qualified employer.

9.       Employers who have laid off workers within 90 days, or who have a strike or lockout in process, are not eligible.

10.   The employer must pay all filing and other fees under the program and cannot pass them on to the employees.               

11.  The W employee will have a way to move to permanent resident status, and eventually to citizenship.

 

This program has some strong similarities to the current H-1B program.  Both are limited in number (H-1Bs are limited to 65,000 per year, although we understand that this bill will increase the number of H-1Bs as well).   Both will have filing dates of April 1.  Both require the employer to pay at least the prevailing wage as determined by DOL.   Although the prevailing wage requirement is criticized by both labor and business, when it is followed, it does serve a valid purpose.  The same is true regarding the provision that will allow the W employee to “port” to another qualified employer, just as an H-1B worker can move.  Like H-1B’s, these W visa holders will have some method to move to LPR status.   

 

One troubling aspect of the W program is the 15,000 yearly limit on construction jobs.   This is government interference in market economics at its worst, without any recognition of the fluctuating needs of what is arguably the most important engine in our national economy.  With the coming debate, the construction industry should exercise every opportunity to have this provision removed or modified significantly,, allowing the market to determine which industries and which employers can exercise their rights to sponsor workers for the W visa .  

 

In short, the new W visa represents a mixture of government regulation and allowance for free market activity by the employer and the employee.   It is not a perfect model, but it is a workable start in an area that has needed attention for some 50 years.  The final format of the visa is almost sure to change during the coming debate and perhaps after experience shows that the original model needs modification.  

 

Stay tuned.

 

Gerry Chapman