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Over 300 Amendments to the Gang of Eight’s Bill for Comprehensive Immigration Reform?
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.
A Summary of the “Gang of Eight’s” Proposed Bill on Comprehensive Immigration Reform
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.
Will the Boston Marathon Bombings Derail Comprehensive Immigration Reform?
“Keep your eye on the ball.” My children are way too young to use this expression yet, but I can’t wait until their first batting practice, or their first shot on the driving range. For now, though, I’m going to use this expression as a metaphor for what’s going on in Washington, D.C., and specifically comments that some on Capitol Hill and elsewhere have made with respect to comprehensive immigration reform and the unspeakable tragedy that played out before our very eyes in Boston last week.
First and foremost, the events that took place in Boston, Cambridge and Watertown last week were horrific. We saw the tragic events unfold literally in front of our own eyes. Mercifully, it’s over, and the healing (along with the prosecutions and continued investigations) can begin.
The “Brothers Tsarnaev” committed terrible crimes. One has already paid the ultimate penalty. One will now be prosecuted to the fullest extent of the law. Although the facts are still unclear about how they actually came to the United States (at least publically anyway), we do know that they were both here lawfully, having gone through some part of our current immigration process (e.g., deriving benefits from their father’s application for political asylum)… all of which would have included extensive background checks.
Last Friday, Sen. Charles Grassley, the Ranking Member on the Senate Judiciary Committee, said, “How can individuals evade authorities and plan such attacks on our soil? How can we beef up security checks on people who wish to enter the U.S.? How do we ensure that people who wish to do us harm are not eligible for benefits under the immigration laws, including this new bill before us?”
In response, the N.Y. Times published an editorial specifically addressing Sen. Grassley’s (and other’s) attempts to link the tragic events in Boston and the debate on immigration reform. “The immigration debate will test the resilience of the reform coalition in Congress. Changes so ambitious require calm, thoughtful deliberation, and a fair amount of courage. They cannot be allowed to come undone with irrelevant appeals to paranoia and fear.”
Republican congressman Mario Diaz-Balart had this to say: “It is a horrible situation. It is heart-wrenching. … Linking something like that to other legislation I think is probably not appropriate at this time. In the first place, we don’t have the facts. And what is indisputable, is that we have an immigration system that is broken; that we have an immigration system that is not working.” Republican congressman Paul Ryan (R-WI) recently stated the following: “We have a broken immigration system, and if anything, what we see in Boston is that we have to fix and modernize our immigration system for lots of reasons. National security reasons, economic security reasons. For all those reasons we need to fix our broken immigration system.”
My father always says there’s no such thing as perfection, except in the dictionary. Our immigration system is far from perfect. The Gang of Eight’s proposal for immigration reform is not perfect, but it’s a very good and very necessary start. The Albany Times Union published an editorial this morning stating, in part, “[t]his bill, warts and all, is the best hope for immigration reform that a system of political give-and-take is likely to produce.” I agree. The editorial went on to say “[i]t’s reasonable to say that if the bombing exposed weaknesses in our system, we should fix them.” I agree with that too.
Please, everyone, keep your eye on the ball, and let’s get this done.
The “Gang of Eight” Introduce a Bipartisan Immigration Reform Bill
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.”
INSIGHT INTO IMMIGRATION 
