Proposals to Allow States to Award State Worker Visas

In early May 2017, Senator Ron Johnson (R – Wisconsin) and Representative Ken Buck (R – Colorado) outlined proposals to allow the States to award worker visas to foreign nationals, with a period of validity of up to three years. Under the proposals, the visas would be issued by the Federal Government, at the discretion of the States.

The proposals represent a significant departure from the current approach, under which the Federal Government has exclusive jurisdiction over the determination of U.S visa applications.

Key Provisions of Senator Johnson’s Bill: “The State Sponsored Visa Pilot Program of 2017”

  • Each State would be permitted to offer visas to up to 5,000 foreign workers.
  • If necessary, the States would be able to draw upon an additional pool of 250,000 visas. The additional visas will be allocated to the States, in proportion to the relative population size of the State.

Key Provisions of Representative Ken Buck’s Bill

  • Each State would be permitted to offer visas to up to 2,500 foreign workers.
  • If necessary, the States would be able to draw upon a further additional pool of 125,000 visas, allocated in accordance with the population size of the State.
  • Under Representative Buck’s proposals, the number of visas available will vary every year, depending on a number of factors, including GDP growth.

The visas would be entirely distinct from any existing visa category; successful applicants will not have any route to permanent residence or U.S citizenship. Moreover, while successful visa applicants are present in the U.S, they will have no recourse to public funds, including federal welfare and healthcare benefits.

Response to the Proposed New State Sponsored Worker Visas

Supporters have advanced a number of arguments in support of the proposed new visas. Notably, the proposed new worker visas will enable States to seek foreign workers, based on specific skill shortages within the State.

Furthermore, the new worker visa category would offer increased job opportunities to foreign nationals who are unable to obtain H-1B visas, due to the annual cap. Under the proposed new scheme, visa holders would not be required to work for a specific named employer throughout the period of validity of their visa, as is currently the case with the H-1B visa. Visa holders would be at liberty to move from employer to employer as frequently as they wish, reducing the risk of unscrupulous employers using the new work visa to obtain leverage over, manipulate or mistreat an employee.

However, while the proposals are currently in their infancy, it is difficult to see how the proposals would work in practice. Under both versions of the Bill, visas holders would be expressly prohibited from obtaining employment in any State other than the State that awarded the visa. While the proposals may work well in large States such as Texas, it is questionable how well such a requirement would work in the North-Eastern States, where commuting over State lines to work is a way of life, due to the relatively small size of the States and the limited number of jobs available.

Indeed, in 2013 the United States Census Bureau found 70.4% of all workers in the District of Colombia reside in either Maryland or Virginia. A similarly high level of interstate commuting was found in respect of Delaware, New Hampshire and Rhode Island. Although both Bills assert the right of the States to enter into reciprocal agreements with neighboring States regarding the employment of workers admitted to the U.S in another State, in practice it is unlikely many States would be willing to enter into such agreements if there is already substantial competition for jobs among U.S citizens in the State. In our view, this issue will need to be addressed if the proposals are to be successful.

The Future of the Bills

At the time of writing, the future of the Bills is uncertain. Throughout his Presidency, Donald Trump has reaffirmed his commitment to reducing U.S immigration and scaling back a number of visa programs, including the H-1B visa program. A number of Congressional Republicans share his view. On that basis, it seems unlikely that the proposals will gain sufficient support to be passed by Congress, particularly if the proposals are not supported by the Democrats. However, we will endeavor to provide updates if there are any further developments.

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Published: 12th May 2017