The Secure America and Orderly Immigration Act of 2005

On May 12, 2005, Senators John McCain (R-AZ) and Edward Kennedy (D-MA), and Representatives Jim Kolbe (R-AZ), Jeff Flake (R-AZ), and Luis Gutierrez (D-IL) and others introduced the Secure America and Orderly Immigration Act of 2005 (S. 1033/H.R. 2330). S. This proposed legislation, if passed and signed into law by the President would reform our immigration laws so that they would enhance our national security and address the concerns of American businesses and families. Some of the may reforms proposed by this bill include: the creation of a national strategy for border security and enhanced border intelligence; the establishment of a new essential worker visa program (the H-5A visa); the promotion of family unity and reduction of backlogs; a mechanism by which eligible undocumented immigrants present in the U.S. on the date of the bill's introduction could adjust to temporary nonimmigrant (H-5B) status with an initial period of stay of 6 years; the protection of individuals from immigration fraud; and the creation of new enforcement regimes. Below is a brief summary highligting the main points addressed by the proposed legislation.

National Strategy for Border Security
The bill would create a national strategy for border security and enhanced border intelligence by authorizing the development of a Border Security Advisory Committee made up of various stakeholders in the border region to provide recommendations to the Department of Homeland Security regarding border security and enforcement issues. In addition, the Secretary of State would be required to provide a framework for better management, communication and coordination between the governments of North America, including the development of multilateral agreements to establish a North American security perimeter and improve border security south of Mexico.

Reauthorization of State Criminal Assistance Program
The bill would also reauthorize the State Criminal Alien Assistance Program for fiscal years 2005 through 2011 and provide that such funds may only be used for correctional purposes. In addition, states would be reimbursed for the indirect costs relating to the incarceration of undocumented aliens.

Establishment of New H-5A Temporary Worker Visa
If passed, the legislation would establish a new temporary (H-5A) visa would allow foreign workers to enter the U.S. and fill available jobs that require few or no skills. In order to be eliigible for the visa applicants would be required to demonstrate the availability of a job in the U.S., pay a $500 fee in addition to application fees, and clear all security, medical, and other checks. The H-5A visa would be valid for 3 years, and could be renewed one time for a total of 6 years At the end of the visa period the worker would have to return home or be in the pipeline for a green card. The visa would be portable, meaning that workers will be able to switch employers. The initial cap on H-5A visas would be set at 400,000, with the annual limit gradually adjusted based on demand in subsequent years. The bill would allow an employer to sponsor the H-5A visa holder for permanent residence or, after accumulating 4 years of work in H-5A status, the worker could self-petition to apply to adjust status.

The proposed legislation lists various employer obligations under the program, details worker protections, and proviodes for an enforcement scheme to deal with violations of such provisions. In addition, the proposed legislation sets up a task force to evaluate the H-5A program and recommend improvements and requires updating of America's Job Bank to ensure that prospectivejob opportunities are seen first by American workers.

Proposed Enforcement Provisions

S. 1033/H.R. 2330 require all new visas issued by the Secretary of State and immigration-related documents issued by the Secretary of Homeland Security to be biometric, machine-readable and tamper-resistant, within 6 months of the bill's enactment. It alsomandates the establishment of a new Employment Eligibility Confirmation System which will gradually replace the existing I-9 system, and which will contain certain safeguards to prevent the unlawful use of the system and a process by which individuals can correct false information. Furthermore, the bill broadens the Department of Labor's investigative authority to conduct random audits of employers and ensure compliance with labor laws, and includes new worker protections and enhanced fines for illegal employment practices.

Promotion of Family Unity and Reduction of Backlogs

The proposed legislation would exempt immediate relatives of U.S. citizens from the 480,000 annual cap on family-sponsored immigrant visas. It would also increase the number of employment-based visas from 140,000 to 290,000 per year and would increase the per-country limits for both family- and employment-based immigrants. Moreover, the bill would allow for lowering the income requirements for sponsoring a family member from 125% of the federal poverty guidelines to 100% and removing other obstacles to ensure fairness.

Eligibility Of Undocumented Immigrants to Adjust Status

The Bill provides a mechanism by which eligible undocumented immigrants present in the U.S. on the date of the bill's introduction can adjust to temporary nonimmigrant (H-5B) status with an initial period of stay of 6 years. To be eligible for adjustment,applicants would be required to undergo criminal and security background checks, submit fingerprints and other data, pay a fine, and establish a previous work history in the U.S. Spouses and children would also be eligible for adjustment under this section.

Protection Against Immigration Fraud

This proposed legislation seeks to protect individuals from immigration fraud by defining who is an authorized representative for purposes of representation in an immigration matter and providing eligibility for "U" nonimmigrant status for certain individuals who have suffered substantial harm at the hands of an unauthorized representative.