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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.
And now for something completely different. I wish I went to the movies more often. All those summer blockbusters (or busts)! I actually haven’t been to the movies in ages. I think that’s about to change.
Recently, the San Francisco Chronicle reported that Facebook CEO Mark Zuckerberg took his first step on the national political stage when he publicly joined other tech leaders, civil rights activists and undocumented immigrants to call for the comprehensive overhaul of our nation’s immigration system.
Zuckerberg was at the West Coast premiere of Jose Antonio Vargas’s film “Documented,” a film that Vargas wrote and directed. Vargas, inarguably the most famous undocumented immigrant in America today, is a former San Francisco State student and San Francisco Chronicle staff writer who made national headlines by revealing in a 2011 New York Times Magazine essay that he is an undocumented immigrant.
“Documented”, directed by Vargas himself, centers around his personal experience as he prepared to reveal his undocumented status in the New York Times magazine essay. The film shows Vargas traversing the country as he speaks at college campuses and visits conservative towns where undocumented immigrants are apparently not welcome.
Throughout the movie, Vargas reminds people that “there is no line” for him to join to acquire citizenship. When he engages some of Mitt Romney’s supporters at a 2011 campaign stop, Vargas says “But sir, but sir, there’s no line. … I was brought here when I was 12. I didn’t know I didn’t have papers since I was 16; my grandparents, who were American citizens, didn’t tell me. So I been here — I been paying taxes since I was 18, I just want to be able to get legal, to get in the back of the line somewhere.”
According to critics, Vargas elegantly positions immigration as the most controversial – and least understood – political issue in the nation. I agree. I liken it to the new third rail of politics.
I have not seen this movie yet. But I will.
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.
I recently read an article in the Business Review addressing New York State’s shortage of some 350,000 mid-level skilled workers. According to the article,“mid-level” jobs are those that fall between a high-school diploma and a four-year degree. Robert Geer, Vice President for Academic Affairs for the University at Albany’s College of Nanoscale Science and Engineering (“CNSE”), said that of the 3,100 people employed at CNSE, most have two-year or four-year degrees, while only 1 in 14 holds a Ph.D. The article got me thinking about what Comprehensive Immigration Reform (“CIR”) will do to address this issue, if anything.
CIR, as proposed in the Gang of Eight’s “Border Security, Economic Opportunity, and Immigration Modernization Act,” includes a provision for a new “merit-based” point system (Track 1 as it is known in the bill). This point system allows foreign nationals to obtain a Green Card by accumulating points primarily based on their skills, employment history, and educational credentials. The bill provides that 120,000 to 250,000 Green Cards would be made available each fiscal year based on the point system. (The actual number would apparently fluctuate based upon a formula that takes into account the number of Green Cards requested the previous year and the unemployment rate.)
According to the bill, Track 1 would have two (2) tiers: one for higher-skilled immigrants with advanced educational credentials and experience, and a second tier for less-skilled immigrants. Beginning in the 5th fiscal year after bill becomes a law, half of the Green Cards would be allocated to applicants with the highest number of points under tier 1, and the other half would be allocated to applicants with the highest number of points under tier 2.
According to the current iteration of the bill, the allocation of points in both tiers is based on a combination of factors, including education, employment, occupation, civic involvement, English language proficiency, family ties, age, and nationality. The system seems to prioritize foreign nationals who are young, educated, experienced, skilled, and fluent in English. Family ties and others factors are weighted lower.
There is also a Track 2 to the merit-based system, which is designed to clear, over a period of seven years (starting in 2015) the enormous backlog that currently exists in the family- and employment-based Green Card “preference” system. Track 2 is designed to eliminate these backlogs by 2021.
Under the bill, commencing October 1, 2014, family- or employment-based Green Card applicants who have had their Green Card applications pending five (5) years or more under our current system will become eligible for a Green Card. (The Track 2 merit-based system also makes Green Cards available to Registered Provisional Immigrants who have maintained that status for at least ten  years.)
It’s not entirely clear how much the Gang of Eight’s bill, as currently proposed, will completely solve the problems identified in the Business Review’s article. Both tier 1 and tier 2 potentially can make a dent. The tier 1 point system, however, seems to favor those foreign nationals with more advanced degrees as opposed to the types of degrees identified as needed in the Business Review’s article.
However, the tier 2 may have some potential. Under the bill, between 60,000 and 125,000 Green Cards would be made available in each fiscal year for foreign nationals in high-demand tier-2 occupations. According to the bill, these are occupations for which the highest numbers of positions were sought to become registered positions by employers during the previous fiscal year. Some Green Cards will be reserved for occupations that require little or no preparation too. Under tier 2, the number of Green Cards available can also increase by 5% each year if demand exceeds supply in any year where unemployment is under 8.5%.
This is significant as it potentially allows workers who currently do not have great chance to obtain a Green Card with an opportunity to obtain one. This is also important considering the United States (and NYS) needs immigrants at all skill levels, as noted in the Business Review’s article.
On Memorial Day, we remember those men and women who have died in our nation’s service. Did you know that non-citizens have a long and proud tradition of serving in the U.S. military? In fact, there are thousands of men and women in uniform who were not born in the United States who are willing to sacrifice everything for our country.
Did you also know that one of the first U.S. service members to die in the U.S. – Iraq War was Lance Cpl. Jose Gutierrez, a non-citizen from Guatemala? He was killed in a tank battle in Iraq in March, 2003. According to CBS News, “The heroism and sacrifice of non-citizens was barely known — until Lance Cpl. Jose Gutierrez died in battle in Iraq. He came from Guatemala, and he came to the United States illegally. We can tell you how his story ended. He was killed in a tank battle in southern Iraq on March 21, .”
Lance Cpl. Jose Gutierrez was granted U.S. citizenship posthumously. “No death of any soldier goes un-mourned. But the death of a man who died for a country that was not his — that proved especially poignant to many Americans, including President [George W.] Bush, who visited two wounded non-citizen soldiers and made them citizens on the spot.”
The presence of non-citizens in the U.S. military has deep historical roots. Non-citizens have fought in the U.S. Armed forces since the Revolutionary War. According to a report issued by the Immigration Policy Center, in August, 2009, there were 114,601 foreign-born individuals serving in the military; of that number, 12% of them were not U.S. citizens.
The military, and indeed our entire country, greatly benefits from the service of non-citizens in the U.S. military. Non-citizen recruits offer racial, ethnic, linguistic, and cultural diversity, something that is incredibly valuable given the U.S. military’s increasingly global agenda.
This has not gone unnoticed by Congress. Once again, according to the Immigration Policy Center, “[o]ver the [eight year period from 9/11], Congress has amended military related enlistment and naturalization rules to allow expanded benefits for immigrants and their families and encourage recruitment of immigrants into the U.S. Armed Forces. The U.S. military has also implemented new programs to encourage the enlistment and rapid naturalization of non-citizens who serve honorably during[.] Without the contributions of immigrants, the military could not meet its recruiting goals and could not fill its need for foreign-language translators, interpreters, and cultural experts.”
We are a nation of immigrants. The U.S. military is no exception. The U.S. military benefits (actually all of us benefit) from the presence of non-citizens within the ranks of the military. Today, as we remember the fallen, let us remember the importance of immigration and non-citizens to our nation and to our history. Let us also remember (and honor) the non-citizens that have made the ultimate sacrifice in defense of our great country.
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.