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I originally wrote about this last Fall, but given the current events in Washington, the general chaotic environment that my colleagues and I are practicing in, and the great concern that clients are showing about their future prospects of remaining in the United States (whether they are here lawfully or not), I thought it appropriate to provide a positive update for the alien entrepreneurs out there.
On January 17, 2017, the Department of Homeland Security (“DHS”) published a final rule to improve the ability of certain alien start-up founders to begin growing their companies within the United States and help improve our nation’s economy through increased capital spending, innovation and job creation.
Under the new rule, effective July 17, 2017, DHS may use its “parole” authority to grant a foreign national a period of authorized stay (that is, temporary permission to be in the United States), on a case-by-case basis, to those alien entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through the potential for rapid business growth and job creation. Those who are eligible may be granted a stay in the United States for up to 30 months, with the possibility to extend the period for an additional 30 months if they meet certain criteria, and in the discretion of DHS.
Here are the specifics. An applicant for parole would need to demonstrate that he or she meets the following criteria.
1. First, that the applicant possesses a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
2. Second, that the applicant has a central and active role in the start-up entity such that the applicant is well-positioned to substantially assist with the growth and success of the business.
3. Third, that the applicant can prove that his or her stay will provide a significant public benefit to the United States based on the applicant’s role as an entrepreneur of the start-up entity by:
A. showing that the start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
B. showing that the start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state or local government entities that regularly provide such awards or grants to start-up entities; or
C. showing that they partially meet either or both of the previous two requirements and providing additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.
Under the rule, parole eligibility may be extended to up to three entrepreneurs per start-up entity, as well as their spouses and children. It is important to note that alien entrepreneurs will be only be eligible to work for their start-up business.
This recently published final rule is a legacy of former President Obama. Some of you will recall that back in 2014, because of Congressional inaction, former President Obama vowed to take whatever steps he could, short of legislation, to advance his immigration agenda, and in this case, to make it easier for alien entrepreneurs to start up or scale up their businesses. Well, he made good on his promise. (Let’s hope our current president keeps this in place, or even improves upon it. There has been a smattering of news that suggests that he may try to kill it.)
A few other important points related to all of this. First, and significantly, there is no required wage obligation for the alien entrepreneur parole beneficiary. However, to maintain parolee status, the alien entrepreneur must maintain a household income that is greater than 400 percent of the federal poverty line for his or her household size as defined by the U.S. Department of Health and Human Services (“HHS”). HHS revises these guidelines annually.
The new rule also requires the alien entrepreneurs to immediately notify U.S. Citizenship and Immigration Services (“USCIS”) of any material changes that could reasonably affect USCIS’s determination that the alien entrepreneur provides, or continues to provide, a significant public benefit to the U.S.
Finally, USCIS has indicated that the required investment and revenue amounts will be automatically adjusted every three (3) years by the Consumer Price Index and USCIS will post the required amounts on its website.
As I have previously mentioned, the investment thresholds appear not to be overly-burdensome. The rule also seems to recognize that new businesses are not all funded the same way, and provides flexibility for entrepreneurs using new or novel funding models.
So that’s the good news. The bad news continues to be that there’s no “next step” for when the entrepreneur’s parole period comes to an end. That is, unless a foreign national has a vehicle in place to become a lawful permanent resident (i.e., a Green Card holder), under the rule, they will not be allowed to change their status from their parole status to some other type of lawful nonimmigrant status while they’re in the United States. That means the entrepreneur would have to leave the United States, try to apply for a temporary visa abroad, and then re-enter the United States (assuming that’s even a viable option).
So, progress? Yes. Panacea for foreign national entrepreneurs? Not totally, but it is for sure a step in the right direction. Let’s hope it stays in place and Congress and our President improve upon it.
So, a little more than a year has passed since I wrote about the 2015 – 2016 H-1B filing season being upon us, and here we are again. April 1 has now come and gone, a new H-1B filing season was upon us, because on April 7, 2015, U.S. Citizenship and Immigration Services (“USCIS”) announced that it had reached the congressionally mandated H-1B cap for Fiscal Year 2016. So the H-1B filing season, after only seven (7) days, is over for employers who are not eligible to file cap-exempt petitions. What am I talking about?
A little reminder about the H-1B nonimmigrant worker program. An H-1B nonimmigrant visa (or status) is a temporary visa (or, as noted, a status) that may be granted to a foreign national who will perform services in a “specialty occupation.” A specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge and the attainment of a bachelor’s or higher degree, or its equivalent, as a minimum requirement for entry into the occupation in the United States. Representative examples of specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.
Since 1990 (which was the start of the H-1B program), Congress has placed a statutory limit on the number of H-1B nonimmigrant visas made available during each government fiscal year (unless an exemption applies to a petitioning employer). The current statutory cap is 65,000 visas per year, with an additional 20,000 visas for foreign national professionals who have graduated with a Masters or higher degree from a United States college or university. In recent years, the statutory limit has been reached within days of April 1, which is the first day that H-1B visas are made available for the fiscal year that starts on October 1.
So what does U.S. Citizenship and Immigration Services (“USCIS”) do when there are more employers filing petitions than there are H-1B visas available? They employ a lottery to choose whose petition will be adjudicated and whose will be rejected. Imagine telling your client, after they’ve paid your fees to get their case prepared and filed, the USCIS may not select their case to be adjudicated!
That’s right, due to incredibly high demand, USCIS uses a random selection process for all cap-subject petitions received within the first five business days available for filing H-1B petitions in a given fiscal year. (It’s a little more complicated than that with the inclusion of the U.S. Master’s or higher degree exemption limit being factored into the mix, but the point remains the same.)
Which of course begs the question whether the cap makes sense. According to USCIS, in the last ten years, six times the cap has been reached in less than ninety days. In four of those years, the cap was reached in six days or less. This year it was seven (7) days.
I’ve heard (probably) all of the arguments as to why we need the cap (e.g., to protect U.S. workers, wages, etc.). In my opinion, the current regulations implementing the H-1B worker program do that just fine. The simple fact is, and the evidence and literature amply supports the proposition, that the H-1B worker program impacts our economy and employment opportunities of U.S. born workers in a very positive manner.
For example, between 1990 and 2010, the increase in STEM workers in the United States under the H-1B program (i.e., those working in the science, technology, engineering or math fields) were associated with a significant increase in wages for college-educated U.S. born workers in 219 cities in the United States. In addition, H-1B-driven increases in STEM workers in a city were associated with an increase in wages of 7 to 8 percentage points paid to both STEM and non-STEM college educated U.S. workers, while non-college educated workers saw an increase of 3 to 4 percentage points.
What about arguments that the H-1B worker program negatively affects employment rates? Bologna. (I haven’t seen, let alone written, that word in 30 years!) The simple fact is that H-1B workers complement U.S. workers, fill employment gaps in many STEM fields, and expand job opportunities for everyone.
The evidence shows that unemployment rates are low for occupations that use large numbers of H-1B visas. For example, many STEM occupations have very low unemployment, compared to, according to the Bureau of Labor Statistics, the overall national unemployment rate. This means that the demand for labor that exceeds supply.
Finally, what about those that argue that the benefits of the H-1B program are limited to those involved in technology fields? Some even argue that H-1B visas are all taken by Silicon Valley companies. Some even say Microsoft and Google take them all by themselves? Wrong! According to data published by the Brookings Institution, in the 2010 – 2011 fiscal year, there were 106 metropolitan statistical areas across the United States that had at least 250 requests for H-1B workers. And while there are admittedly a lot of H-1B workers that are filling STEM occupations, there is also a significant amount of demand for H-1B workers in healthcare, business, finance, and life science fields.
There are exemptions to the H-1B cap that some employers are eligible for (e.g., institutions of higher education, a related or affiliated non-profit entity, a nonprofit research organization, or a governmental research organization), and it’s a pleasure to represent entities that have an exemption available to them. But the simple fact is, the cap should be raised, significantly, or even eliminated. The evidence is clear that the H-1B visa program enhances our economy in so many important ways.
 U.S. Citizenship and Immigration Services, “USCIS Reaches H-1B Cap,” 2005; see also U.S. Citizenship and Immigration Services, “USCIS Reaches H-1B Cap,” 2006 – 2014.
 See, e.g., Nicole Kreisberg, “H-1B Visas: No Impact on Wages” (Great Barrington, MA: American Institute for Economic Research, 2014); Giovanni Peri, Kevin Y. Shih, Chad Sparber, and Angie Marek Zeitlin, Closing Economic Windows: How H-1B Visa Denials Cost U.S.-Born Tech Workers Jobs and Wages During the Great Recession (New York, NY: Partnership for a New American Economy, 2014); Giovanni Peri, Kevin Y. Shih, and Chad Sparber, “Foreign STEM Workers and Native Wages and Unemployment in U.S. Cities,” NBER Working Paper No. 20093 (Cambridge, MA: National Bureau of Economic Research, 2014).
 Giovanni Peri, Kevin Shih, and Chad Sparber, “Foreign STEM Workers and Native Wages and Employment in U.S. Cities” (Cambridge, MA: The National Bureau of Economic Research, 2014).
 Information Technology Industry Council, the Partnership for a New American Economy, and the U.S. Chamber of Commerce, Help Wanted: The Role of Foreign Workers in the Innovation Economy (Washington, DC: December 2012), pp. 2-3.
 Neil G. Ruiz, Jill H. Wilson, and Shyamali Choudhury, “The Search for Skills: Demand for H-1B Immigrant Workers in U.S. Metropolitan Areas” (Washington, DC: The Brookings Institution, 2012), p. 1.
I recently took my five year old to his first day of kindergarten. He was pretty excited (and so was I for him). Now that the summer is officially behind us, our summer vacations are but a distant memory, our children are now back to school, and we are back to work.
I’m sure most of you know that our children must be in school no less than 180 days during the school year. I’m sure most of you, like me, work no fewer than 5 days a week (and often more). Do you know how many days Congress has been in session this year? Do you know how many days Congress has actually worked this year?
I remember when I used to work on Capitol Hill. Summertime at the office was fairly quiet as a rule. My boss would spend most of this time back in New York, occasionally coming back to Washington for one thing or another. It was pretty rare. Times have not changed, but our legislators certainly have.
When I worked on the Hill, I was admittedly a geek. I would go sit in the Senate gallery after work and watch bills being debated. Let me set the scene. If you’ve ever watched Congressional proceedings on C-SPAN, you might think that all the Senators or Representatives are intently listening to their colleague debate the merits of a bill. Nothing could be further from the truth. Typically the only people in the Senate or House chambers are the person speaking about a particular bill, a staffer sitting behind that particular legislator, one or two stenographers, a few congressional pages, whoever happens to be sitting in the chair person’s seat, and a few administrative folks who actually work for the Senate or the House. I imagine that if I was working on Capitol Hill today, I might have to find something else to do after work given that no Congress in modern history has passed fewer laws (to date anyway) than this one.
I read an interesting piece on the NBC News website recently that this particular Congress has been the least productive in modern history. Just prior to its August recess, “just 142 public bills [had] become law in this current Congress (2013-2014) – down from the 906 the 80th “Do-Nothing” Congress passed in 1947-48, and the 333 that were enacted during the Newt Gingrich-led 104th Congress of 1995-96.”
After coming back from their summer recess, Congress took care of a few things, and according to a recent article from NBC News, they’re now gone until November! “The U.S. House has been in session for roll call votes a total of 92 days in 2014 – or 35% of the year up until now. (They had “pro forma” sessions – without any legislative business – for an additional 25 days.) … The Senate’s been working slightly less, holding roll call votes on just 87 days this year, with an additional 30 days of “pro forma’ sessions, when most lawmakers aren’t in Washington.”
What about you and I? According to NBC News, “[t]hose of us working a typical 5-day work week, with public holidays, would have been clocking in for a total of somewhere around 181 days during that time.”
Incumbency is still a big plus for a legislator running for re-election, although arguably it’s a little less meaningful these days than it was before. We have important national issues that need our Congress’s attention, not the least of which is … wait, wait for it … Comprehensive Immigration Reform (CIR). The Los Angeles Times reported recently that although House Speaker John Boehner noticeably left immigration out of a speech made recently about the economy, he acknowledged during questions afterward that he thought that “immigration reform would help our economy.” Duh. So why can’t he get his party’s support in the House to pass meaningful immigration reform?
Instead, we’re left to wonder whether, and if so, when, President Obama will take executive action in lieu of congressionally passed (and supported) CIR. We can debate whether executive action in lieu of legislation is a good idea. Doing nothing, however, is a bad idea.
We are very fortunate to represent many employers who sponsor foreign nationals as H-1B nonimmigrant workers. One of the biggest challenges in working with H-1B nonimmigrant workers is explaining that their dependent spouse cannot also work in the United States. This is about to change for some.
As a reminder, an H-1B nonimmigrant worker is someone who works in a “specialty occupation,” which is an occupation that requires the theoretical or practical application of a body of highly specialized knowledge. Examples of H-1B specialty occupations are scientists, engineers, or computer programmers. H-1B nonimmigrant workers are admitted for an initial three year period, and their employers can extend that up to a maximum limit of six years.
Some H-1B nonimmigrant workers can actually extend their H-1B nonimmigrant status beyond the six years. For example, if their employer (or a prospective employer) filed a permanent residence application prior to the end of their fifth year of H-1B eligibility. Another example would be if the H-1B worker has a Labor Certification Application (commonly known as a PERM application) approved by the U.S. Department of Labor and an I-140, Immigrant Petition for Alien Worker, approved by U.S. Citizenship and Immigration Services.
Under current law, H-4 dependent spouses cannot apply for work authorization (unlike spouses in some other nonimmigrant classifications, e.g., L-1 dependent spouses). That is about to change.
On May 6, 2014, the Department of Homeland Security announced the publication of a propose rule designed to attract and retain highly skilled workers. The rule would allow spouses of certain H-1B nonimmigrant workers to request employment authorization if their H-1B spouse is currently pursuing permanent residence through employment-based sponsorship.
According to this proposed rule, H-4 dependent spouses can apply for work authorization if the H-1B spouse (a) is the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker or (b) has been granted an extension of his or her authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B nonimmigrant workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit (in the situations described above).
Of course, this rule is a welcome change. And while this proposed rule may assist an estimated 97,000 H-4 dependent spouses who will now become eligible to apply for employment authorization, the rule does not assist H-4 dependent spouses whose H-1B spouses are not in the employment-based permanent residence process. By contrast, spouses of L-1 intracompany transferees are eligible to apply for work authorization, without the requirement of having to be in the permanent residence process.
This is not a perfect solution, but it’s a pretty big deal, nevertheless. I cannot tell you how often I have to break the news to an H-1B nonimmigrant worker that their trailing spouse can come to the United States but cannot work him or herself. There are organizations that work with trailing spouses (e.g., Tech Valley Connect works with trailing spouses to assist them with their professional development and assimilation into their new community), but a good portion of their missions are assisting trailing spouses with their professional development. Given the cap limitations associated with the H-1B program, what good does it do to work on professional development when employers are co constrained in terms of their ability to participate in the H-1B program?
From an immigration reform perspective, this, along with several other happenings recently, is interesting. Republicans have repeatedly said that President Obama cannot be trusted to enforce our laws. Here, we have an instance of legislating through regulatory change. This comes on the heals of President Obama directing DHS Secretary Jeh Johnson to conduct a review of immigration policy, including weighing an administrative move to curtail deportations. We shall see if there is any fall out of this in Congress. For now, a little progress.
Many who know me will tell you that I have a propensity to have stream of consciousness moments. I think to myself, “Define Irony”, and then I try to think about a (classic) movie moment where this statement might have been made. Has anyone ever seen the movie “Con Air”? Hardly a classic, I know. Nevertheless, does anyone remember when all the convicts were dancing on the plane to Lynyrd Skynyrd’s “Sweet Home Alabama”? Steve Buscemi, a fabulous actor, says “Define Irony: A bunch of idiots dancing on a plane to a song made famous by a band that died in a plane crash.”
Merriam-Webster defines irony as:
(1) a pretense of ignorance and of willingness to learn from another assumed in order to make the other’s false conceptions conspicuous by adroit questioning —called also Socratic irony;
(2) (a) the use of words to express something other than and especially the opposite of the literal meaning, (b) a usually humorous or sardonic literary style or form characterized by irony (c) an ironic expression or utterance;
(3) (a) incongruity between the actual result of a sequence of events and the normal or expected result; an event or result marked by such incongruity, (b) incongruity between a situation developed in a drama and the accompanying words or actions that is understood by the audience but not by the characters in the play —called also dramatic irony, tragic irony.
Where am I going with this? Good question. Right after the President’s State of the Union Address, House Republicans finally released their “Standards for Immigration Reform.” It was a one page document that primarily echoed what the Republican leadership had been saying for months: border security and interior enforcement is their top priority, and they offered a commitment to some sort of legalization program for those in the country without legal status. The document also highlighted the importance of implementing an entry-exit visa tracking system and employment verification, above and beyond their interior enforcement goals.
Finally, right? I mean, it’s not a perfect, and indeed it’s pretty vague on some level, which means it offers House Republicans cover within their own party and when they’re negotiating with their Democratic colleagues. But it was progress nevertheless.
And then, literally in the wake of this statement, barely one week later, House Speaker John Boehner seemed to stamp out (once again) any prospect for immigration reform. Speaking of the Obama Administration, he said “There’s widespread doubt about whether this administration can be trusted to enforce our laws. And it’s going to be difficult to move any immigration legislation until that changes.” Speaker Boehner went on to say, “We are going to continue to discuss this issue with our members, but I think the President’s going to have to demonstrate to the American people and to my colleagues that he can be trusted to enforce the law as it is written.”
Really? Are you kidding me? So the Republicans are no doubt concerned about some of the commentary leading up to the State of the Union Address, where there was some discussion that if the President could not get his way legislatively in certain areas, he would simply resort to Executive Orders. But to say that the President can’t be trusted to enforce our laws?
Let’s consider deportations during the Obama Administration. Ever read “The Economist”? I love that magazine. And I think it’s fair to say that it’s pretty conservative too. Well, The Economist recently labeled the President as “Barack Obama, deporter-in-chief.” “America is expelling illegal immigrants at nine times the rate of 20 years ago; nearly [two million] so far under Barack Obama, easily outpacing any previous president. Border patrol agents no longer just patrol the border; they scour the country for illegals to eject. The deportation machine costs more than all other areas of federal criminal law-enforcement combined. It tears families apart and impoverishes America.”
A week later, The Economist followed up their earlier story with another article entitled “America’s deportation machine, The great expulsion.” Says the article, “ It is hard to find many areas where the federal government is so effective in implementing laws passed by Congress.” The article highlights the growing pressure that President Obama’s deportation machine is putting on the courts, and also even speaks to a detention bed quota. But the article also singles out something known as “Secure Communities” as the real culprit behind the dramatic increase in deportations. “The turning of police officers into immigration officials has brought border enforcement into areas
of the country far from the deserts of the south-west. Secure Communities, the name given to the programme that links police work to the immigration database, began life in a single jurisdiction in Texas in 2008 at the end of George W. Bush’s presidency. By May 2013 it was operating everywhere.”
So, not only do we have those federal agencies and officials who we expect to be enforcing our immigration laws doing a pretty good job, but now we also have state and local officials, who have essentially been deputized to do the same.
Can’t be trusted? Really? Define irony. Or, maybe we should be saying define disingenuousness. I’m trying to think of a movie quote. “Anyone? Anyone?”
Do you remember how hopeful everyone was in January? “Now is the time.” That’s what President Obama said on January 29, 2013 in Las Vegas when he introduced his four (4) part plan for Comprehensive Immigration Reform (“CIR”). In early July, the U.S. Senate passed a marked-up and amended version of the Gang of Eight’s “Border Security, Economic Opportunity, and Immigration Modernization Act,” and we were off to the House of Representatives. And that’s where we are today … still waiting for something … anything.
There’s a lot of discussion these days whether we’re ever going to have CIR (or any immigration reform for that matter). I heard an interesting piece the other morning on National Public Radio (“NPR”), where Brent Wilkes, national executive director of the League of United Latin American Citizens, a strong supporter of CIR, said he’s not concerned if CIR happens before the end of 2013.
“The real clock is this session of Congress doesn’t end until next December,” said Wilkes, who predicts that the House will vote on immigration bills by April or May in 2014. “This has been a long, long process for us, well over 20 years, and we’re not so impatient that we can’t wait four more months,” he added. I suppose that’s encouraging.
But I am also hearing a lot of political chatter as to the likelihood of having CIR before next year’s congressional mid-term elections, during the 2016 presidential primary cycle, or ultimately even by the time the 2016 presidential elections take place.
In a nutshell, the analysis goes like this. Although the Hispanic population today makes up 17 percent of the nation’s population and is the fastest-growing ethnic group, they disproportionately live in congressional districts represented by Democrats. So there’s no real incentive, at this point anyway, for Republican House members running for re-election in 2014 to support CIR if it’s not going to benefit them in their own district or, worse, potentially hurt them.
On to the Republican presidential primaries, where Republic presidential candidates will be focused on placating their conservative base (i.e., the voters in presidential primaries). No chance for CIR at this point
Now we’re into 2016, where maybe a Republican presidential candidate (or dare I say the Republican party) will finally learn the lessons of 2012. (That’s three years from now in case you’re not counting.)
Speaking of lessons learned, former Governor and Republican presidential candidate Mitt Romney recently went on CBS Morning to talk about life after the elections. During his comments, he stated that a significant shortcoming of his campaign was appealing to minority voters. (Really?) Interestingly, he took a somewhat different approach on immigration than he had during the campaign when he advocated “self-deportation.” Romney said, “I don’t think those who come here illegally should jump to the front of the line, or be given a special deal — be rewarded for coming here illegally — but they should have a chance, just like anybody else, to get in line and become a citizen if they’d like to do so.” While an admirable view, I think it’s a little too late coming from Governor Romney (but of course, we’re talking about lessons learned).
OK, so how about some potentially good news. Last week Speaker Boehner (R-OH) made a hiring choice for his own staff that hopefully speaks to his seriousness to address immigration reform in 2014. Roll Call reported that “Rebecca Tallent, who currently serves as director of immigration policy at the Bipartisan Policy Center (BPC), will join Boehner’s staff[.] Before joining the BPC, Tallent held several senior staff positions with Sen. John McCain, including chief of staff.”
The Roll Call piece went on to say that “[d]uring her time with McCain, [Ms. Tallent] helped the Arizona Republican draft a handful of immigration overhaul measures, including the last big push McCain made with the late Sen. Edward M. Kennedy … in 2007. … Before working for McCain, she worked for former Rep. Jim Kolbe, R-Ariz., a longtime advocate of overhauling the immigration system[.]”
CIR is very much overdue. “Now [still] is the time.” January seems so long ago, but I remain cautiously optimistic that the House will do something about CIR, albeit now likely in 2014.
Last week, I attended a retirement luncheon for Bishop Howard Hubbard, Bishop of the Diocese of Albany for the past 36 years. Bishop Hubbard and the late Sr. Maureen Joyce hired me in the summer of 2000 to set up and oversee an Office for Immigrant Services at Catholic Charities for the Diocese of Albany. This office sees low and no income clients, many of whom cannot afford to walk into a private practitioner’s office. Many of these (potential) clients also have immigration-related issues that would be well served by Comprehensive Immigration Reform (“CIR”).
While walking into the luncheon, Bishop Hubbard pulled me aside and asked how our numbers were in the office. I told him we were as busy as ever, and that if CIR was signed into law, we would have to re-think our office’s ability to handle the anticipated increase in caseload. When I said this, he looked at me curiously and said he thought that CIR was dead. I responded that in light of current events in Washington (e.g., the government shutdown, raising the debt ceiling, the fumbled rollout of Obama Care, etc.), that CIR was not dead, but that the support for it was definitely muffled. I hope I was right in saying that.
So what’s going on with CIR? Well, we know that the Democratic leadership in the House introduced H.R. 15, a CIR bill generally modeled after the successful bipartisan Senate bill (except that the House Democrats’ bill does not include billions of dollars requiring hundreds of miles of new border fence, as the Senate bill did). As of today, there were actually three Republican co-sponsors to H.R. 15: Rep. David Valadao (R-CA), Rep. Ros-Lehtinen (R-FL) and Rep. Denham (R-CA).
In a statement released when he decided to co-sponsor H.R.15, Rep. Valadao stated: “I have been working with my colleagues on both sides of the aisle to find common ground on the issue of immigration reform. Recently, I have focused my efforts on joining with likeminded Republicans in organizing and demonstrating to Republican Leadership broad support within the Party to address immigration reform in the House by the end of the year. By supporting H.R. 15 I am strengthening my message: Addressing immigration reform in the House cannot wait. I am serious about making real progress and will remain committed to doing whatever it takes to repair our broken immigration system.” (Finally, some common sense coming out of the House.)
You would think Republicans would have learned after the 2012 election debacle that CIR was a necessity. You would also think that after Republicans took it on the chin in the media for their antics during the government shutdown that they would be looking for opportunities to curry favor with voters. Public Policy Polling recently released new polls that looked at eight Congressional districts currently held by Republicans. The poll finds that while voters in each of these districts are unhappy with their Republican Representatives because of the government shutdown, the polls also found that “voters make it clear in each of these districts that they’ll be more likely to vote to reelect their Congressmen next year if they vote for immigration reform.”
“Now is the time.” That’s what President Obama said on January 29, 2013 in Las Vegas, Nevada when he introduced his four (4) part plan for CIR. When will Republicans get this?
In July, the U.S. Senate passed a marked-up and amended version of the Gang of Eight’s “Border Security, Economic Opportunity, and Immigration Modernization Act.” The House, for its part, has until last week taken a more piecemeal approach to Comprehensive Immigration Reform (“CIR”). The House Judiciary Committee and others have passed smaller immigration bills relating to border security, internal enforcement, guest workers, and high-tech visas. Notably, there was no path to citizenship (or even a lawful immigration status) in the House bills that passed for the eleven to thirteen million undocumented immigrants in the United States. That changed last week.
On October 2, the Democratic leadership in the House announced the introduction of H.R. 15, a CIR bill modeled after the successful bipartisan Senate bill, with one notable exception. The House Democrats’ bill does not include billions of dollars requiring hundreds of miles of new border fence, as the Senate bill did. Instead, the House bill would set specific goals for border enforcement.
The likelihood of this bill being passed as is (or perhaps even passing at all) is pretty slim. Nevertheless, it keeps the dialogue about CIR moving forward. Here are some highlights.
First, the House Democrats’ bill’s border-security measures are more goal-oriented than the Senate’s bill, as passed. The Senate bill would spend $30 billion to double the number of federal border agents, complete 700 miles of fencing, and expand radar and aerial drone surveillance along the border. The House Democrats’ bill, on the other hand, requires the Department of Homeland Security to create a detailed plan requiring the apprehension of ninety percent (90%) of illegal border-crossers in high-traffic areas within thirty three (33) months, and across the entire U.S.-Mexico border in five (5) years.
Second, both bills would grant legal status to around 7.7 million of the 11.5 million unauthorized immigrants currently in the United States.
Third, both bills would allow an additional five (5) million legal immigrants into the United States in the next five (5) years. The House Democrats’ bill, like the Senate bill, would revamp the system for permanent residency and the admission of temporary workers.
Fourth, both the House Democrats’ bill and the Senate bill would tighten employer enforcement of illegal immigration. Specifically, both bills would require employers to use a new version of E-Verify, an electronic system for determining the legal status of current and prospective employees.
And finally, both bills would include a various other changes to the immigration system, including reforming the immigration court and detention process, making it harder for immigrants to attain legal status if they commit certain crimes, and streamlining the political asylum process.
So is this much ado about nothing? Perhaps. House Democrats contend that their bill could pass if House Speaker John Boehner would allow it to come up for a vote. The problem is that Speaker Boehner has repeatedly said that no bill will receive a vote unless a majority of House GOP members support it. Asked if there was any chance Republican Majority Leader Eric Cantor would put the bill on the House calendar, Cantor spokesman Rory Cooper replied, “No.”
It remains to be seen what the House will do with H.R. 15 or any other immigration bills that might be introduced in the House. Not withstanding the current dysfunction in Washington, D.C. (the government continues to be shut down as I write this), I continue to be cautiously optimistic that CIR is within Congress’s grasp.
As I write this piece, summer is slowly turning into fall, the leaves are just starting to change their colors, and Congress has come back to work from its summer recess. Comprehensive Immigration Reform (“CIR”) is only slightly closer to reality than it was since the U.S. Senate passed a marked-up and amended version of the Gang of Eight’s Border Security, Economic Opportunity, and Immigration Modernization Act. The House of Representatives continues to take baby-steps toward a piecemeal approach at CIR. We’ll see what happens there.
So, instead of focusing on what’s going on in Washington, D.C. in terms of CIR, I thought it might be interesting to take a different approach for this month’s article. That is, what’s been going on at the state level on the immigration front?
The National Conference of State Legislatures (“NCSL”) recently reported that “[a]s of June 30, 2013, state legislatures had already exceeded the number of laws and resolutions enacted in all of 2012. In the first half of 2013, lawmakers in 43 states and the District of Columbia enacted 146 laws and 231 resolutions related to immigration, for a total of 377. This is an 83 percent increase from the 206 laws and resolutions enacted in the first half of 2012.”
The issues touched upon nationwide have been expansive: education, employment, health, human trafficking, ID’s and driver’s licenses, law enforcement and public benefits, to name just a few.
I started out this column noting that our immigration system is badly broken at the federal level. The fact that the states, therefore, have responded by passing their own patchwork of laws attempting to regulate immigration, typically considered to be within the exclusive jurisdiction of the federal government, makes the situation even worse.
The reason for this uptick in state-sponsored immigration legislation is reported to be two-fold. First, in 2012, states seemed to wait for the outcome of the U.S. Supreme Court decision in Arizona v. United States. On June 25, 2012, the Supreme Court overturned three of four provisions in Arizona’s S.B.1070 regarding that states authority in immigration enforcement.
Second, just a couple of few weeks earlier than the Supreme Court’s decision, the Obama Administration issued a new policy on deferred action for childhood arrivals (commonly known as “DACA”). On June 15, 2012, then-Secretary of Homeland Security Janet Napolitano announced that certain people who came to the United States as children and who meet several key guidelines could request consideration of deferred action for a period of two (2) years, subject to renewal, and could also be eligible for work authorization. Deferred action is a discretionary determination by the Department of Homeland Security (“DHS”) to defer the removal action of an individual as an act of prosecutorial discretion. Deferred action does not, however, provide an individual with lawful status.
According to the NCSL, a number of state-enacted immigration laws have been quite positive. For example, Colorado, Minnesota and Oregon extended in-state tuition benefits to unauthorized immigrant students. As of this writing, 15 states now offer this benefit. Other states took up driver’s license eligibility, beginning with California in the fall of 2012, and Colorado, Connecticut, Georgia, Illinois, Maryland, Maine, Nevada, Oregon and Vermont in 2013.
What’s going on in New York thus far in 2013? As of June 30, 2013, our state legislature considered four pieces of immigration-related legislation, three of which were passed.
First, the controversial Secure Ammunition and Firearms Enforcement Act (commonly known as the “New York SAFE Act”) amended gun licensing restrictions to include the consideration of citizenship or immigrant status (i.e., generally preventing the issuance or renewal of a license under the act to an alien not legally or lawfully in the United States).
Within the state budget, there were two immigration-related provisions. First, there was a provision which related to an electronic information sharing system that allows for the exchange of criminal history records for noncriminal justice purposes authorized by federal or state law, and defines noncriminal justice matters to include the use of criminal history records for purposes other than criminal justice matters, including immigration and naturalization matters. The state budget also included a provision which amended eligibility for unemployment benefits for illegal aliens; that is, illegal aliens or immigrants working without legal permission cannot obtain unemployment benefits.
By line item veto, Governor Cuomo vetoed a provision in the state budget which would have included funds for language classes for limited English proficient and immigrant students.
The NCSL also reported that the largest spike in immigration-related activity at the state level was in passage of non-legislative resolutions. That is, 31 states adopted 231 resolutions covering a myriad of issue areas. Twenty five sought action from Congress or the Obama Administration, including eight resolutions related to passing CIR. Others asked Congress to reauthorize the Violence Against Women Act (which it did), among other important areas.
Once again, the fact that the states are passing their own immigration related laws and resolutions is proof positive that our immigration system is broken at the federal level, and CIR is desperately needed. The Senate has already spoken. House Judiciary Committee Chairman Bob Goodlatte recently was quoted as saying that congressional fights over Syria and the debt limit “should not deter us from getting to [immigration] as soon as possible.” He said his committee and others have already passed smaller immigration bills relating to border security, internal enforcement, guest workers, and high-tech visas, and there could be votes on these measures as soon as October. Notably, there’s still no path to citizenship (or even a lawful immigration status) in the House bills that have passed for the eleven to thirteen million undocumented immigrants in the United States. I guess we’ll have to continue to wait and see what happens.
So… the U.S. Senate passed a marked-up and amended version of the Gang of Eight’s “Border Security, Economic Opportunity, and Immigration Modernization Act,” and now we’re on to the House of Representatives. What happens there is anybody’s guess. What we do know for sure is that Speaker of the House John Boehner has no intention of taking action on the Senate’s bill. “I’ve made it clear, and I’ll make it clear again: the House is not going to take up the Senate bill. The House is going to do its own job in developing an immigration bill,” Speaker Boehner said at a press conference last Monday afternoon.
So what does that mean for Comprehensive Immigration Reform (“CIR”)? I have no idea. How sad that I just wrote that. House Republicans seem so out of touch with what the American people want, and what’s good for America.
There have been countless reports in recent weeks referencing a number of studies which tout how great CIR would be for the U.S. economy. Take for example the combined report of the President’s National Economic Council, Domestic Policy Council, Office of Management and Budget, and the Council of Economic Advisers, entitled “The Economic Benefits of Fixing Our Broken Immigration System”. This report details the range of benefits to the U.S. economy that would be realized from passage of CIR. More importantly, it also discusses the high cost of inaction.
There was also a study published by the Institute on Taxation and Economic Policy (“ITEP”) that concluded that undocumented immigrants who live and work in the United States pay billions of dollars in taxes every year to state and local governments. If they earned a legal status, they would apparently pay even more. According to ITEP, “undocumented immigrants paid an estimated total of $10.6 billion in state and local taxes in 2010.” Moreover, “allowing undocumented immigrants to work in the United States legally would increase their state and local tax contributions by an estimated $2 billion a year.” If CIR were to occur, the increase state and local taxes in New York is estimated to be $224,126,000!
I remember working in Washington, D.C. in the late 1980’s. Fresh out of college and going to grad school, I started interning on Capitol Hill for Sen. Alfonse D’Amato. He then hired me and I worked for him for ten years. In those days, it seemed like most of the legislation I saw get passed was largely bipartisan and things got done. Today, it’s the complete opposite. It seems like nothing gets done in Washington, and no one’s getting along across party lines. With that as the backdrop, it was incredible that the Senate passed their bill. As for the House, the House Judiciary and Homeland Security Committees combined have passed five piecemeal bills dealing with immigration reform. None offer a road to legalization or citizenship for the undocumented population, and none increase the number of visas for legal immigration or clear the backlogs that currently exist.
It remains to be seen what the House will do in developing their owner “immigration bill”, as Speaker Boehner suggests it will. I suppose it should be somewhat encouraging that Speaker Boehner told House Republicans last week to pass immigration reform legislation, stating that House Republicans will be “in a much weaker position” if they failed to act. He’s right.