W Visa: Lesser-Skilled Work Visas

A new temporary work visa is written with the Gang of Eight’s immigration reform bill. The W-visa creates a nonimmigrant classification for low-skilled workers. To be eligible for a W visa:

  • An alien must pass a background check and attest to accept only registered positions in the U.S. at a US embassy or consulate in a foreign county (cannot do this in the US according to the bill). This is known as becoming “certified”.
  • Alien applies for and obtains a W visa. ONLY CERTIFIED ALIENS CAN OBTAIN A W VISA.
  • Employer registers as a W visa employer with the DHS which allows DHS systems to monitor employers.
  • Employer then applies to have a “registered position” with the DHS. This is the position that the W visa nonimmigrant will fill. This process requires a recruiting process very similar to labor certification.
  • Only O*Net Job Zones 1, 2, and 3 occupations (low to medium skill) are eligible for W visa “registered positions”. Occupations that require a bachelor’s degree or higher ARE NOT eligible to be “registered positions” and cannot accept W visa labor.

Bill Highlights

  • W visa holders can only work in “registered positions” with “registered employers.” Title IV, Subtitle G § 4702, p. 788.
  • The first year (beginning April 1, 2015) that W visas are available only 20,000 registered positions may be approved. The following year, 35,000. The third year, 55,000. The fifth year, 75,000. After the fifth year the Commissioner of the Bureau of Immigration and Labor Market Research (Bureau) will use a market-based methodology to determine how much the visa numbers should increase or decrease over the previous year. The minimum for a year is 20,000 visas and the maximum is 200,000. Under the formula given in the bill it would be very unlikely that the number would go down. Title IV, Subtitle G § 4702, p. 809-812.
  • Occupations eligible to be registered for W visas by registered employers include all job zones 1, 2, and 3 positions as determined by O*Net, EXCEPT any requiring a bachelor’s degree or higher OR computer positions. Title IV, Subtitle G § 4702, p. 803-804.
  • There will be a recruitment process very similar to labor certification. To register a position, a registered employer must post the job opening (including wage, location, and start date) on a Secretary of Labor site created for this advertising purpose AND on the appropriate state workforce website, both for 30 days. The employer must also perform 3 recruitment activities including: job fairs; employer’s website; job search website; vocational school, community college or high school presentations OR recruitment programs; trade association posting; recruiting firm; newspaper, library, or journal postings; employee referral program; radio or television; diversity hiring postings; high school career days; in house training; third party training; local economic development authority; two Sunday newspaper ads; other efforts deemed appropriate by the W visa bureau once it is established. Title IV, Subtitle G § 4702, pp. 801-803.
  • Dependents, spouses and children, of W visa holders are eligible to accompany and may be granted work authorization. Title IV, Subtitle G § 4702, p. 789.
  • W visa applicant must first be “certified” at an embassy or consulate abroad. Title IV, Subtitle G § 4702, p. 789.
  • W Visa is initially granted for a period of three years with a renewal period of up to three years. The renew can be done in the United States. Title IV, Subtitle G § 4702, p. 790.
  • W visa allows no more than 60 consecutive days of unemployment. Alien must leave the United States if they cannot find employment. Title IV, Subtitle G § 4702, p. 790.
  • W visa may travel and return to the United States. But this travel cannot extend the period of authorized stay. Title IV, Subtitle G § 4702, p. 790.
  • For an employer to become “registered” for the W visa program they must submit an application to the DHS including documentation to show they are bona-fide, FEIN or Federal Tax Identification Number, and the number of certified W nonimmigrants they expect to employ per year. Title IV, Subtitle G § 4702, p. 791.
  • Criminal or mortally unsafe employers may not be registered employers, either temporarily or permanently, depending on the severity of the crime/offense. Every registered employer must submit an annual report demonstrating continued adherence to the program requirements, including paying the proper wage and maintaining proper working conditions. Title IV, Subtitle G § 4702, pp. 791-795.
  • There will be essentially a labor certification attestation: to register a position, a registered employer must attest to the number of employees, the occupational classification of the position, if the occupation is in a “shortage area” as designated by a new W visa Bureau, and that the wages paid will be the higher of actual wages or the prevailing wage for the position (as determined by BLS, collective bargaining, or private survey). Also the employer must attest that the working conditions will not adversely affect other employees, there are no qualified workers that are ready, willing and able to take the position, there is no strike, and the employer has not lain of similar positions 90 days before or after the filing of an application to register a position. Title IV, Subtitle G § 4702, pp. 796-798.
  • Registered employers will be given a permit for their registered positions, detailing how many and the types of these registered positions. Registered positions last as long as the employer is a registered employer, three years from approval of the position, or the date the employer terminates the registration, whichever is earliest. IF the W nonimmigrant in the registered position is the beneficiary of a petition for immigrant status (presumably EB-3 petition) FILED BY THE REGISTERED EMPLOYER, then the registered position will remain valid until the petition is adjudicated OR the W nonimmigrant leaves or is fired by the registered employer. Title IV, Subtitle G § 4702, pp. 799-800 and pp. 805-806.
  • If a W visa nonimmigrant quits a registered position job, the employer may fill the position with another certified alien, a W visa holder, a US worker, or an alien with an EB-3 petition. Title IV, Subtitle G § 4702, pp. 804-805.
  • The DHS will determine the application fees. But, there are additional fees based on the size of the company and % of non-US workers the employer employs for EACH APPROVED REGISTERED POSITION. A small business (25 or fewer employees) with more than 50% but less than 75% of their employees non-US workers must pay an additional $1,750 fee in addition to whatever application fee the DHS eventually decides on. A small business with more than 75% non-US workers have to pay an additional $3,500. A not small business (more than 25 employees) with more than 15 percent and less than 30 percent non-US workers would have to pay $3,500 in addition to the application fee. An employer with more than 25 employees AND 30 percent or more non-US workers CANNOT REGISTER A POSITION FOR THE W VISA PROGRAM. Title IV, Subtitle G § 4702, pp. 806-808.
  • W visa holders cannot be hired by registered employers in high unemployment areas (MSAs with over 8.5% unemployment in the month preceding the application for a registered position) unless the Commissioner of the proposed Immigration Bureau has identified the occupation as a “shortage occupation” for either that particular MSA or the US as a whole. The methodology for this determination has not yet been created, as it will be up to the as yet nonexistent Bureau of Immigration and Labor Market Research Commissioner. Additionally, if the position is in an MSA with more than 8.5% unemployment AND not a shortage area, the Secretary may approve the application IF the registered employer undertook at least SEVEN of the recruitment steps instead of the required 3. Additionally, high unemployment hires will require a higher level of pay: either a level 4 wages as determined by FLCDC Online Wage Library OR the average of the 2/3 highest wages for the position in the MSA, whichever is higher. Any special allocations of visas like this will reduce the next year’s overall level by an equal amount. Title IV, Subtitle G § 4702, pp. 778-779, 808, and p. 813.
  • Filing and allocation will divide a year in half, with 50% of the visa allocated for the first 6 month and the remaining visas for the following 6 months. Only shortage occupations (if there are any), as determined by the Bureau, may be applied for during the first month of each 6 month period of a filing year. During the 2nd, 3rd, and 4th months of each 6 month period, 1/3 of the visas shall be reserved for small business applications and if they are not used in these months, following this time non-small businesses may apply for them. Title IV, Subtitle G § 4702, pp. 815-817.
  • Construction workers can receive no more than 33% of available visas OR 15,000 per year (7,500 per any 6 month period), whichever is lower. Additionally, registered positions cannot be created for construction positions in MSA’s with over 8.5 unemployment for the corresponding job zone (the Bureau will publish these statistics). Title IV, Subtitle G § 4702, pp. 817-819.
  • W visa nonimmigrants enjoy job portability to other registered positions with registered employers. They may quit their job for any reason . Title IV, Subtitle G § 4702, p. 819.
  • Registered employers cannot “outplace” (essentially contract labor) their W visa employees to other employers if the registered employer’s workforce is more than 15% W visa holders. Essentially, no labor or staffing companies that just get W visas and lease them to others. Title IV, Subtitle G § 4702, pp. 819-820.
  • All labor and employment laws that apply to US workers also apply to W visa holders, and no waiver shall be allowed. W visa holder are not required to pay any of the fees associate with the program BUT the employer does not have to pay for round trip transportation costs to get the alien to the US and/or return them to their country of origin. Violations of the W visa protection may result in H-1B style punishments such as back wages, benefit payments, and civil monetary penalties. Title IV, Subtitle G § 4702, pp. 820-825.

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