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So of course the centerpiece of President Obama’s administrative “fix” of our “broken immigration system” are his initiatives to grant “deferred action” to some aliens who are unlawfully present in the United States, and who were brought to the United States as children and raised here. But the President did much more when he announced on November 20, 2014 several other initiatives which affect lawful immigration, and which are supposed to assist our country’s high-skilled businesses and workers. Here’s a brief overview.
1. Immigrant Visa Issuance. The President wants to ensure that all available immigrant visas (basically, “Green Cards”) are used each year, and the President has created a new interagency task force to modernize and streamline the immigrant visa system. Because of delays in processing applications for immigrant visas, some visas going unused each fiscal year. Given the unbelievable backlogs in some of the family- and employment-based immigrant visa categories, this is clearly unacceptable. The President’s action is an attempt to ensure that all immigrant visas available for issuance in a year are used.
2. Optional Practical Training. The President announced that he would expand the duration of any “optional practical training” (commonly known as “OPT”) engaged in by foreign national students who studied science, technology, engineering, and mathematics (commonly known as “STEM” fields) at institutions of higher education in the United States on F-1 nonimmigrant student visas. The President also proposed to expand the degree programs eligible for OPT.
Presently, foreign national students studying in the United States on F-1 nonimmigrant visas may request 12 months of post degree temporary employment, or OPT, in their field of study. In 2008, regulations were promulgated which permitted students in STEM fields to request an additional 17 months of OPT, for a total of 29 months of OPT. However, only students in STEM fields are eligible for this 17 month extension, and these students can participate in OPT for no more than 29 months.
3. Aliens Whose Admission to the United States is in the National Interest. The President proposes to expand the use of the immigrant visa category which allows aliens with advanced degrees or “exceptional ability” to obtain an immigrant visa without a sponsoring employer if their admission to the United States is in the “national interest.”
4. Inventors, Researchers, and Founders of Start-up Enterprises. The President proposes to use the authority granted to the executive branch in the Immigration and Nationality Act (“INA”) to “parole” foreign nationals into the United States when there is a “significant public benefit” to allow some inventors, researchers, and founders of start-up enterprises to enter and lawfully remain in the United States without a visa.
5. L-1B Specialized Knowledge Aliens. For companies who wish to hire foreign nationals as “intra-company transferees” using the L-1B nonimmigrant visa program, the President’s proposal seeks to clarify and standardize the meaning of “specialized knowledge” for purposes of the L-1B visa program. The L-1B nonimmigrant visa allows companies to transfer certain employees who are executives or managers, or have “specialized knowledge” of the company or its processes, to the United States from the company’s foreign operations.
6. I-140 Portability under AC21 §106(c). The President seeks to clarify what is meant by the “same or similar job” for purposes of INA §204(j), which provides that employment-based immigrant visa petitions remain valid when the foreign national employee changes jobs or employers so long as the new job is in the “same or similar occupational classification” as the job for which the original petition was filed.
7. Labor Certification (“PERM”) Modernization. The President seeks to review the Labor Certification program (commonly called “PERM”), whereby the U.S. Department of Labor (“USDOL”) certifies that the issuance of an employment-based immigrant visa will not displace U.S. workers, or adversely affect the wages or working conditions of similarly employed U.S. workers. More particularly, the President wants to identify methods for aligning domestic worker recruitment requirements under the PERM regulations with demonstrated occupational shortages and surpluses.
8. Human Trafficking and Crime Victims. The President announced that the USDOL will certify (a) applications for T nonimmigrant visas for foreign nationals who have been victims of human trafficking, as well as (b) applications for U nonimmigrant visas for eligible victims of extortion, forced labor, and fraud in foreign labor contracting that the USDOL detects in the course of its workplace investigations.
The President announced other initiatives too (which I will write about at a later time). As you can see from the above, not everything the President announced was controversial (even though some feel how he went about it was). It seems clear to me, however, that what he announced was very necessary and very welcome (by most, anyway).
I’ve taken some time to digest the 2014 midterm election results, and specifically in terms of what they mean for the prospect of comprehensive immigration reform. At first blush, it doesn’t look great. At second blush too.
Last week, however, the New York Times published (in my opinion) an excellent editorial, making the case why President Obama should go it alone and use his executive authority to give temporary protection to potentially millions of aliens unlawfully present in the United States. I am well aware that this is a hotbed issue, and people have legitimately strong arguments on both sides of it. I think the President should go for it, and it looks like he’s about to, perhaps as early as this week (and we’re informed not later than the end of the year).
To be honest, I have mixed emotions about President Obama. But the reality is, the New York Times is absolutely correct in saying that “[s]ix fruitless years is time enough for anyone to realize that waiting for Congress to help fix immigration is delusional.” It’s actually been longer than six years. President George W. Bush tried for comprehensive immigration reform during his presidency, and that fell apart. Others before him have tried and failed as well.
I’ve made this point before, but it really is worth repeating. Our immigration system is broken. Is it really practical to think that we’re going to deport 11 to 13 million aliens who are unlawfully present in the United States? No. Does it make sense that we educate foreign nationals at some of our best institutions of higher education, and then tell them that they can’t stay here because there’s no visa, either temporary or permanent, that allows them to? No. Our immigration system is broken, and our national leaders, with the input of relevant stakeholders, should discuss, debate and implement comprehensive immigration reform.
Unfortunately, a legislative fix does not appear in the offing. Thus, we’re now hearing (and reading) that President Obama may use his executive power to prevent the removal (commonly known as deportation) of anywhere between 3 and 5 million aliens who are unlawfully present in the United States. The specifics are apparently still being worked out, but I’m hearing that those who are the parents of U.S. citizen children, or the spouses of U.S. citizens, will be allowed to remain in the United States, and even obtain permission to work, indefinitely.
Just so I am clear. These individuals will not be afforded lawful permanent residence (i.e., a Green Card), nor will they be put on a path to citizenship. Only Congress has the ability to make those types of changes (with, of course, the signature of the President).
This is not a perfect solution. These individuals would (potentially) only be receiving a temporary reprieve from deportation. Congress could change the law, or a future president could cancel President Obama’s program. If that were to occur, those who participated in the program would be out in the open and thus exposed to removal. Nevertheless, I think it’s a step in the right direction, and worth the risk for those aliens who would participate in it.
As the New York Times stated in its editorial, “[t]here will surely be intense debate when [President] Obama draws the lines that decide who might qualify for protection. Some simple questions should be his guide: Do the people he could help have strong bonds to the United States? Does deporting them serve the national interest? If it doesn’t, they should have a chance to stay.” I agree.
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.
The other day I read an Associated Press piece in the Saratogian called Influence Game: Tech, Labor Spar On Immigration. The article started out as follows:
“To the U.S. technology industry, there’s a dramatic shortfall in the number of Americans skilled in computer programming and engineering that is hampering business. To unions and some Democrats, it’s more sinister: The push by Facebook’s Mark Zuckerberg to expand the number of visas for high-tech foreign workers is an attempt to dilute a lucrative job market with cheap, indentured labor. ”
The article went on to discuss the politics behind proposed changes to the H-1B nonimmigrant visa program in the Gang of Eight’s bill for Comprehensive Immigration Reform (“CIR”). What it did not explore, or explain very well, was the statement that somehow the H-1B program facilitates “cheap, indentured labor.” Please allow me to dispel this myth.
The H-1B nonimmigrant visa is granted to foreign national professionals who will perform services for a U.S. employer in a “specialty occupation.” Examples of specialty occupations include architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts. Most employment-based nonimmigrant visas are tied to an employment relationship. That is, a U.S. employer is required to sponsor the foreign national so that the foreign national can work for that sponsoring U.S. employer. If the foreign national wishes to change jobs in the United States, a new employer must do the same thing. For individuals who are coming to the United States temporarily (which with few exceptions is what a nonimmigrant visa is supposed to be all about), I have no problem that the law requires the employers and employees to be tied at the proverbial hip (although I do agree that some not so nice employers probably do take advantage of this). Nevertheless, years ago Congress made it much easier for H-1B professionals to move from one employer to another. With a competitive labor market in the United States, H-1B professionals often do change employers in search of better opportunities (and I regularly work with both employers and employees where an H-1B professional is moving from one employer to another). H-1B employees are hardly indentured workers.
I am also troubled, however, by this persistent myth that somehow this labor is “cheap.” Nothing could be further from the truth. The law requires employers to pay foreign nationals on H-1B visas the higher of the prevailing wage for the occupational classification in the area of employment, or the actual wage (that is, the amount paid by that employer to “all other individuals with similar experience and qualifications for the specific employment in question” ). I regularly see in my practice where an employer wishes to hire an H-1B professional only to find out that the wage the employer must pay the foreign national is higher, sometimes substantially higher, than the wage the employer was going to offer (or the wage that the employer is currently paying other individuals at the employer’s business).
Another fact lost in the article is the hassle and expense for a U.S. employer to sponsor a foreign national for an H-1B. To hire a foreign national on an H-1B, a U.S. employer must incur legal fees, filing fees, training fees, fraud prevention and detection fees, and sometimes even “premium processing” fees (i.e., fees paid U.S. Citizenship and Immigration Services [“USCIS”] to expedite a petition). There are potentially more fees too. Filing fees alone to USCIS can be north of $5,000.00. And this does not include the additional expenses to the company associated with the extra paperwork and ongoing compliance involved in the hiring and employing of an H-1B professional.
Trust me when I say H-1B professionals are not cheap labor, for the H-1B professional or the employer.
On May 7, 2013 several senators proposed, in total, more than 300 amendments to the Gang of Eight’s bill for Comprehensive Immigration Reform (“CIR”). That’s right, more than 300 amendments. If you’re interested in perusing them, they’re all available on the Senate Judiciary Committee’s website.
Some of the amendments are good (e.g., making sure that all families can be reunited with their loved ones including siblings of U.S. citizens, making sure that businesses have access to the workers they need, ensuring that both U.S. workers and foreign nationals are fairly paid and are fully protected, and restoring due process so that everyone who goes through our immigration system is treated fairly).
Some amendments are bad. For example, requiring largely ineffective and cost prohibitive measures as “triggers” before an undocumented alien could apply for legalization, barring aliens with minor convictions from being able to apply for Registered Provisional Immigrant (“RPI”) status, preventing RPI’s from being able to travel outside the United States to visit their families, and eliminating important legal protections such as access to legal counsel and the basic right of a detainee to have a custody hearing before detention.
According to at least one news outlet, thus far there has been a spirit of bipartisanship during the mark-up of the bill (e.g., an amendment by Republican senator Charles Grassley sought to require continuous surveillance of 100% of the U.S. States border and achieve 90% effectiveness of enforcement of the entire border was approved by a voice vote).
Of course, not everyone is embracing this bipartisan spirit. Sen. Ted Cruz from Texas, the freshman Senator who always seems to find a way to be in the news, filed an amendment to the bill last week that would ban anyone who has been in the U.S. without status from becoming a citizen at any point.
I’m not from Texas, but my sense is that it’s a fairly conservative state. I find it interesting, therefore, that The Houston Chronicle had some harsh words for its two Senators who both sit on the Senate Judiciary Committee. I quote: “Many of these amendment IEDs are being offered by such ardent opponents of the legislation as the Lone Star State’s Senate duo, tea-party true-believer Ted Cruz and his senior colleague John Cornyn, a tea-party target in 2014 if he doesn’t toe the line. Despite protestations to the contrary, Cruz, Cornyn and other hard-liners would be happy to hobble immigration reform. That’s why they have latched on to the border-security issue as a way to kill it.”
I think that most Democrats and Republicans would agree that realistic and cost effective border reform is a key goal for CIR to have any shot at passing. Let’s make sure, though, that it is both realistic and cost effective.
On 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.
This morning, the Gang of Eight offered their vision of Comprehensive Immigration Reform. Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake introduced the “Border Security, Economic Opportunity, and Immigration Modernization Act,” an 844 page piece of legislation. This is Congress’s starting point for further discussion, debate, no doubt revision, and eventually (hopefully) the signature of President Obama. In a joint statement upon the introduction of the bill, the Senators said:
“Our immigration system is broken and it is time for a national conversation about how to fix it. We believe common-sense immigration reform is vital in order to secure America’s borders, advance our economic growth, and provide fuller access to the American dream. Our bipartisan proposal is a starting point, and will be strengthened by good-faith input and ideas from across the ideological spectrum. We look forward to multiple Senate hearings on this bill, an open committee process with amendments, and a full and fair debate in the Senate.”
I know the topic of immigration and immigration reform invokes deep feelings… both positive and negative, from the general public. People are entitled to their opinions. I have them too. But when I think about these topics, I make myself take off my lawyer hat and try to set aside my political ideology. I try to come at this issue from a very practical point of view. Our immigration system is broken. Is it practical to think that we’re going to deport 11 to 13 million undocumented foreign nationals who are presently in the United States? No. Does it make sense that we educate foreign nationals at some of our best institutions of higher education… and then tell them that they can’t stay here because there’s no visa, either temporary or permanent, that allows them to? No. Our immigration system is broken and it is about time that our national leaders, with the input of relevant stakeholders, discuss, debate and implement comprehensive immigration reform.
Very broadly, the Gang of Eight’s bill addresses such important issues such as (a) border security, (b) legalization for individuals in an unlawful status (a so-called “registered provisional immigrant status” where after ten years an individual could apply for lawful permanent residence, i.e., a Green Card, through a merit-based system), (c) elimination of backlogs in the current family- and employment-based immigrant visa categories, (d) the creation of a startup visa for foreign entrepreneurs who seek to emigrate to the United States to startup their own companies, (e) merit-based visas, where points are awarded to individuals based on their education, employment, length of residence in the U.S. and other considerations, (f) enhanced employment verification rules (i.e., mandatory participation in the E-Verify program, photo-matching, etc.), (g) H-1B nonimmigrant visa reform (e.g., raising the base cap of 65,000 to 110,000, with the potential for the cap to go as high as 180,000, and amending the current 20,000 exemption for U.S. advanced degree holders to be a 25,000 exemption for advanced degree graduates in science, technology, engineering, and mathematics from U.S. schools, along with several other changes), (i) visa programs for lower-skilled workers, and (j) a program to allow current undocumented farm workers to obtain legal status.
It will take some time for this proposed legislation to be reviewed and digested. Then the debate will begin. The debate will be spirited. Hopefully it will be constructive and not divisive.
Is this proposed legislation perfect? I’ve obviously only skimmed it at this point, but the answer is probably no. Is it a good start? It sure is. More than anything, though, “it’s about time.”