Law Offices of Chris M. Ingram

    The Strive Act and Z Visa

    The Strive Act

    Read News Updates on the Strive Act and Z Visa! 

    The Strive Act (The Security Through Regularized Immigration and a Vibrant Economy Act, H.R. 1645) is a comprehensive immigration reform bill, introduced to the House in March (22MAR07) by Republican Rep. Jeff Flake (AZ) and Democratic Rep. Luis Gutierrez.

    Enforcement of the Strive Act: The Strive Act has triggers: one is that the DHS cannot implement any new immigration programs until it proves that border surveillance and technology has been improved, two, that the infrastructure that must be in place to highly limit the amount of fraud committed through documents, and third, that the first phase at least of the Electronic Employment Verification System be implemented.

    Part one must be reported to Congress within six months, part three must occur within a year of the bill’s enactment and regardless of these triggers, the implementation of the new worker programs will take at least a year.

    During this year, government agents will be trained to administer the new programs, and immigrants themselves will need to be educated about how to prepare their paperwork for legal status.

    A time frame may have to be added to the bill in order to ensure a satisfactory timeframe for implementation of the programs.

    Military on the Border: There will be no military on the Mexican/Canadian border, but the National Guard can be called up by the Governor of a State to provide assistance in case of ground reconnaissance, translation services, rescuing aliens in need of help, or constructing roadwork/fences.

    Border Patrol Agents: DHS is required to increase border control by 20 per cent on the Canadian border. Immigrants must be given the opportunity to pursue citizenship and exist in the United States in a legal manner. When immigration is more manageable, border control will become easier and more effective.

    State and Local Police: State and local police do not have the authority to enforce immigration laws under the Strive Act. What they do have the power to enforce is criminal law – but not civil immigration laws (unlike the CLEAR Act, which would have given the police that power).

    The Strive Act and Aggravated Felony: The Aggravated Felony definition is expanded under the Strive Act, with the definition of alien smuggling as part of a commercial organization that endangered the lives of the aliens or US citizens being added included.

    New Immigration Penalties Under the Strive Act: There are new immigration penalties for those convicted under federal law of gang crimes. Aliens convicted of at least three DUI’s who served more than a year in prison also face severe penalties.

    Document Fraud: The Strive Act does not contain barriers for hardworking immigrants by forcing them to pay excessive immigration penalties and or making them face automatic barring of legal status. Legislation such as the Dream Act and AgJobs applicants are exempt from the Strive Act’s fraud penalties.

    The criminal code already in place for forgery, passport, visa and document fraud and schemes to defraud aliens are already in place, but the bill expands on this code with even more penalties for those who break the law.

    However, prosecution is waived for “vulnerable populations”, (eg refugees, trafficking victims, minors, abused women and children).

    Additional Changes to Criminal Law: The Strive Act enhances penalties that already exist for those who break the criminal law – crimes such as failure to depart after removal, smuggling of aliens, illegal employment of aliens, money laundering and firearms offences will be subject to increased penalties.

    The Strive Act and Zadvydas: The Strive Act will not overturn Zadvydas as last year’s bill would have – in this case, DHS will be allowed to extend the detention period for beyond the 90-day removal period, and allows the alien to seek judicial review. If an alien is held, the DHS must show an immigration judge irrefutable evidence that the detention is legal.

    The DHS is given authority under the new bill to construct 20 new facilities that will hold 20,000 aliens at least.

    H-2C

    Terms of the new H-2C program:

    1) Evidence must be provided of a job offer
    2) Background checks must be carried out
    3) A $500 application fee must be paid
    4) A medical exam must be carried out
    5) Applicant must be admissible under current immigration laws

    The visa is valid for three years, and can be renewed once after three years have passed. Bars related to unlawful status would not apply while others would be waived – however, bars that are in place as a result of criminal activity or related to security could not be waived.

    Spouses and children may legally accompany the visa holder.

    The Strive Act is Not a Guest Worker Program: Workers who are under the Strive Act will receive far more protection and right than they would under a simple guest worker program. Strive Act workers can move from one employer to another if they so wish, and enjoy the same rights and benefits that US workers receive. They are not authorized to be employed in any company involved in a labor dispute, and must be paid the prevailing wage for their occupation. They will receive travel authorization.

    Most crucially, they will be on a path to legal residency and will have the option of self-petitioning after five years, instead of relying on their employer to petition for them.

    The Strive Act and the Visa Cap: There will be limitations on how many visas are allocated – 400,000 will be given out on the first fiscal year of the bill’s implementation, a number which will rise or fall according to the demands of the market.

    Workers Will Not Be Paid Less Than US Workers: The Strive Act makes it very clear that the H-2C workers must be paid the same amount and receive the same benefits as US workers.

    US Workers Will Not Be Displaced: Employers planning on giving work to applicants under the new visa will first have to prove they offered the positions to US workers who are qualified and available to work. New workers cannot work in an area that has a unemployment rate that is higher than 9% for workers of low skill.

    Unemployed Under the Strive Act: Workers have 60 days to find a job if they are unemployed, after which they must leave the country. If the reason for unemployment is related to an emergency an appeal can be made. Authorized unemployment such as vacation time, maternity leave or medical leave do not count.

    Obtaining a Green Card: A H-2C worker can get a Green Card for themselves and their family either by applying themselves after having worked for five years, or can be sponsored by an employer who will file a visa petition on behalf of the worker. A fee of $500 must be paid.

    Electronic Verification

    Employer Verification: The Strive Act will create a new electronic system to replace the old, fraud-prone I-9 system, which will be brought in over a four-year period. Employers must take part in the first “critical infrastructure” phase within one year of the bill being enacted.

    Worker Protection: Under the Strive Act, workers will receive a default confirmation of work authorization in the event that the DHS does not maintain timeline the bill gives. There will be the option for workers of compensation for lost wages through a judicial review, and anti-discrimination laws will be put in place for workers.

    Worker Documents: There is a list of documents a worker must provide to verify their identity and authorization to legally be employed. The requirements depend on the worker – for example, US workers can show their passport or driving license. There are some exceptions to the documentation rules if the worker has disabilities.

    Employer Penalties: There are severe civil and criminal penalties for employers who abuse the new visa. If an employer is caught consistently hiring undocumented workers, they may have to pay fines of $20,000 for each worker and spend up to three years in prison. The new penalties cover violations of record keeping and other verifications.

    Undocumented Immigrants and Legalization

    Legalization for Undocumented Workers: As well as passing all background checks and paying the $500, a fine of $1500 must be paid, back taxes must be paid, and the worker must meet a reentry requirement.

    The “Touchback” Requirement: Workers who wish to stay in the US under the Strive Act must leave the country and then come back in legally, within the six years they have a visa and at least six months before an application is made for a Green Card.

    This allows workers to enter the US on a clean slate, and avoid the accusation that the US is merely rewarding illegal workers with the Strive Act. Politically, the “touchback” will garner more support for the Strive Act and result in almost 12 million illegal immigrants being granted legal status.

    Denied Applications: Applicants who are denied a H-2C visa can seek an administrative review with the DHS as well as a judicial review with the federal courts.

    Applicant Confidentiality: The information given by applicants will be protected at all times with the exception of information related to a criminal/national investigation or as prosecuting information to law enforcement.

    Applicant Rights: The applicant does not have to waive their rights in order to gain legal status.

    Green Card Processing Times: The Strive Act states that workers on the H-2C will only receive their Green Cards after the current backlog is cleared, or eight years after Strive is enacted (whichever happens first). The total waiting time is estimated at nine to eleven years for an undocumented worker.

    Backlog Reduction

    The Strive Act and Family Backlog: The bill will make very important changes to the way families of H-2C workers are dealt with. Under the Strive Act, immediate relatives of the applicant will not be subject to the 480,000 family visa cap. This means that many more workers will be able to receive Green Cards.

    Employment-Based Visa Cap: Changes are also made to the employment-based immigration system – Green Card availability will go up to 290,000 from 140,000, meaning that an extra 150,000 Green Cards will be available every year to applicants petitioning for Green Cards through work.

    Highly Skilled Workers: There are many benefits for highly-skilled workers under the Strive Act – the quota for H-1B visas will go from the current 65,000 to 115,000. Professions related to nursing, technology, math, science and engineering, amongst others, will be exempt from the cap.

    Due Process

    Judicial Review/Stripping: The Strive Act does not include any “Fix 99” provisions, eg restorations to judicial review or aggravated felony definition. The Strive Act does not take away from judicial review, either.

    Detainees/Asylum Seekers: The Strive Act includes something called “Safe and Secure Detention, which ensures that safeguards are in place to protect immigrant detainees and asylum seekers, including a new office dedicated to detention oversight and legal programs. A secure alternatives program will also be established.

    Due Process Fixes: Some due process fixes may be added to the Strive Act during the legislative process, but bipartisan support will be needed in order to pass.

    Other

    Social Security Benefits: Although the Strive Act grants social security benefits to workers, those benefits could potentially be taken away by negative amendments such as last year’s (2006) “Ensign” amendment, which was lost by a mere one vote. Legalized applicants seeking to correct their social security records will not receive any protection under the Strive Act.

    245(i) Fix: The Strive Act does not have a 245(i) fix, but applicants and their families can still apply for Green Cards without being subject to three/then year admission bars.

    The DREAM Act: The DREAM Act is part of the Strive Act, creating a path towards permanent residency for students who have been educated in the US but do not have legal papers.

    AgJobs: The AgJobs Act is also part of the Strive Act, which allows undocumented agricultural workers a chance to become legalized workers.