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Goodbye 2013 : Hope for Immigration Reform in 2014?

imm_4Do 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.

House Democrats Pass H.R. 15 Bill for Comprehensive Immigration Reform

BorderSecurityImageIn 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.

A Summary of the “Gang of Eight’s” Proposed Bill on Comprehensive Immigration Reform

BorderSecurityImageOn April 16, 2013, the Senate’s “Gang of Eight” introduced the “Border Security, Economic Opportunity, and Immigration Modernization Act,” an 844 page piece of legislation which is the Senate’s starting point for Comprehensive Immigration Reform (“CIR”).    So, what’s actually in the “Gang of Eight’s” 844 page bill?

Here’s a primer.

1. Legalization.  This is perhaps the most controversial provision of the bill.  The bill provides that non-citizens who are in the United States unlawfully, and who entered the U.S. before December 31, 2011, may apply to become a Registered Provisional Immigrant (“RPI”).  Those who are eligible would be required to pay a penalty along with any and all back taxes due and owing.  They would also receive permission to work (and they would be permitted to travel abroad). They would also become eligible to apply for their Green Card after ten (10) years.   Three (3) years after that, they can apply for naturalization (i.e., citizenship).

2. H-1B Nonimmigrants.  The H-1B nonimmigrant visa / status is granted to a foreign national who will perform services in a specialty occupation.  The bill will increase the available yearly quota to a minimum of 110,000 nonimmigrant visas, and a maximum of 180,000.  The bill will also increase the U.S. advanced degree exemption to 25,000, but will limit the issuance of visas under this exemption to “STEM” graduates (i.e., science, technology, engineering, and math graduates).

The bill also proposes to add a recruitment requirement for all H-1B labor condition applications (which are required to be certified by the U.S. Department of Labor as part of the H-1B process).  With respect to the H-1B category, this is (for the most part) very new (and I suspect will not be very popular with employers who use the H-1B program).

On the positive side, the bill also proposes to provide employment authorization for spouses and, on a technical point, adds a 60-day grace period after an H-1B worker has been terminated from his or her job.

3. Employment-Based Green Cards.  Employment-based immigration is organized in what is called a “preference” system which has annual quotas.  The total number of employment-based “Green Cards” available in the U.S. government’s fiscal year is 140,000.   The bill proposes to exempt the following categories from the annual quota: aliens of extraordinary ability, outstanding researchers and professors, multinational executives and managers, doctoral degree holders, physicians who have completed their foreign residency requirement, and with respect to all of them, their spouses and children.  The bill also adds a new employment-based Green Card category for certain entrepreneurs.

4. Family-Based Green Cards.  Family-based immigration is also organized in a “preference” system which also has annual quotas.  The total number of family-based “Green Cards” available in the U.S. government’s fiscal year is 226,000.   The bill proposes to merge the FB-2A preference category (related to spouses and children of Green Card holders) into the immediate relative classification (where there is no quota), allow for derivatives of immediate relatives, eliminate the FB-4 category (related to siblings of U.S. citizens), cap the age of eligibility of married sons and daughters of U.S. citizens at thirty one (31), and reinstate the V nonimmigrant visa (related to spouses and children of Green Card holders).

5. Nonimmigrant (Temporary) Workers: Temporary workers typically are in the United States on “nonimmigrant” visas (like the H-1B). The bill proposes to create a “W-1” nonimmigrant visa for lesser-skilled workers, a “W-2” nonimmigrant visa for foreign nationals coming to the U.S. temporarily to perform agricultural services or labor under a written contract, and a “W-3” nonimmigrant visa for “at-will” workers with an offer of full-time employment in an agricultural occupation. (The W-2 and W-3 visas would replace the current H-2A agricultural worker program.)

6. Political Asylum: Political asylum may be granted by U.S. Citizenship and Immigration Services (“USCIS”) or an Immigration Judge to foreign nationals who have been persecuted or fear they will be persecuted on account of their race, religion, nationality, and/or their membership in a particular social group or their political opinion.  The bill proposes to eliminate the current one-year filing deadline for applying for political asylum.  It also proposes to authorize asylum officers to grant political asylum during “credible fear interviews” (i.e., interviews of foreign nationals who affirmatively apply for political asylum upon entering the United States).  These would both be welcomed changes.

7. E-Verify:  E-Verify is an Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States.  The bill proposes to require all employers to use the system after five (5) years.

8. Fraud: The bill proposes to make it a crime to knowingly defraud an immigrant or hold oneself out as an attorney or Board of Immigration Appeals (“BIA”) accredited representative when one is not authorized to do so.  This is another very welcome change.  The bill also proposes to require the identification of individuals who assist aliens with the completion of forms.

There’s more… a LOT more, actually.  These are the “big ticket” items, and at least some of them will create a lot of discussion within the halls of Congress over the coming weeks (and perhaps months).  The bill is not perfect, but it is a very good start.

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