House bill does not address comprehensive immigration reform

Shortly after the Senate passed its version of Comprehensive Immigration Reform (CIR) bill, the House of Representatives also drafted H.R. 1417 - House's Border Security Results Act of 2013.  The new House bill is different from the Senate bill in that it is not a comprehensive immigration reform plan.  Rather, it is a bill that focuses on border security.  Specifically, it directs the Department of Homeland Security (DHS) to develop a five-year national strategy and implementation plan for security and operational control of the borders, including a plan for implementing a biometric exit system.

H.R. 1417 also requires DHS to submit regular reports and the strategy and implementation plan to the Government Accountability Office (GAO).  For examples, 90 days after the bill is passed, DHS must submit a report on state of situational awareness and operational control; and 180 days after enactment, DHS must submit a plan to implement biometric exit system at Ports of Entry.  The bill directs DHS to consult a national laboratory and other authorities to measure certain "metrics" regarding border control.  Some examples of metrics include:  Illegal border crossing effectiveness rate, illicit drugs seizure rate, and cocaine seizure effectiveness rate.

The House bill does not contain any provisions for allowing the illegal immigrants to be legalized.  It also does not address any issues regarding immigrant visa backlog issues, employment immigration issues, H-1B visa cap, etc.  It is purely an enforcement bill aimed at further securing the borders.  It is consistent with the "step-by-step approach" announced by House Speaker John Boehner.  According to Mr. Boehner, although the majority of House members intend to tackle immigration reform, they will not take up the recent bill passed by Senate. (For highlights of the Sentate CIR bill, click here.) Instead, the House will take a slower approach and draft its own immigration reform bills piece by piece.

Any CIR proposal will likely be challenged in the House, which is controlled by conservative Republicans.
CIR by definition will provide ways to allow the millions of undocumented immigrants in the U.S. to be legalized.  Additionally, in August, Congressional members will take summer recesses to return to their legislative districts.  It is expected that they will face conservatives constituents who are likely be opposed to comprehensive immigration reform.  As such, upon return to the Washington in the fall, some House members may feel pressured to vote down any proposals for CIR.

Still, CIR is far from dead in Congress.  The voting power of new immigrants especially the Hispanics is a huge incentive for the Republican leaders to pass CIR.  It is clear that President Obama wants to pass an immigration reform bill this year, and he also spoke to the lawmakers about his intention.  The House will be the key battleground. Within the House, in order to pass any CIR bill, the Speaker must first agree to bring it to the floor for discussions.  So far, Mr. Boehner has been reluctant to do so.  Even if a CIR is passed by the House, it may likely be quite different from the Senate version.  The two versions must be first reconciled before a final bill can be presented to the President for signature.  Timing is also an important factor in this legislative process, as there are only a few months left in 2013.

Highlights of Senate's new Comprehensive Immigration Reform Bill

The U.S. Senate finally releases its version of a Comprehensive Immigration Reform (CIR) bill today.  The Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 proposes to reform many aspects of the current immigration policy, including the creation of a new Registered Provisional Immigrant Status (RPI) for the undocumented immigrants. The prerequisite is that the border must be secured first before any RPI petition will be approved. The following are the highlights of the most important proposed changes:

Family-sponsored Immigration

• Reduce the current four family preference categories to two categories only: Unmarried adult children (of U.S. citizens); married adult children (of U.S. citizens) who file before age 31, and unmarried adult children of lawful permanent residents. 

• Lawful permanent residents will be able to petition for their spouses and minor children (currently F2A) without regard to visa numbers – just like U.S. citizens can do now.

• The current F4 preference category will be eliminated 18 months after the law is enacted – meaning that U.S. citizens will no longer be able to petition for their brothers and sisters.

• The Diversity Visa Program (“Visa Lottery”) will be eliminated after FY2014.

Employment-sponsored Immigration

• Spouses and children of EB applicants will no longer use up visa numbers – meaning that a lot more employment-based visa numbers will be freed up for use!

• All employment first preference categories will also be exempt from the annual visa limits including EB-1A Extraordinary Ability Aliens, EB-1B Outstanding Researchers and Professors, and EB-1C Multinational Company Executives and Managers 

• Doctorate degree holders and some physicians will also be exempt from the annual visa cap.

• Also exempt from visa quota are individuals with a master’s degree or higher in a STEM (science, technology, engineering or mathematics) field from an accredited U.S. institution and have an offer of employment in a related field and the qualifying degree was earned in the five years immediately before the petition was filed. (Current EB-2 STEM applicants.)

• The annual employment-based visa limit will be allocated as follows:

• The Bill will create a startup visa for foreign entrepreneurs to startup their own companies.

• A Merit-Based Visa (MBV) program will be created in the 5th year after law was passed.  Similar to the Canadian system, the MBV awards points to individuals based on their education, employment, length of residence in the US and other considerations. Annual quota will be 120,000 visas, which can be increased by 5% per year if demand exceedssupply in any year where unemployment is under 8.5%. The total number of visa will be capped at 250,000.

• The MBV can also be used beginning on October 1, 2014 for employment-based visas that have been pending for threeyears, family-based petitions that were filed prior to enactment and have been pending for five years, long-term alienworkers and other merit based immigrant workers.

• Based cap will be raised from  65,000 to 110,000.

• For U.S. advanced STEM degree holders, cap will be raised from 20,000 to 25,000.

• In future years, the cap can go as high as 180,000 based on a demand index.

• Spouses of H-1Bs will be allowed to work if their country of origin allows spouses of U.S. citizens to work.

• A 60-day transition period will be allowed for H-1B workers to change jobs.

• Dual intent visas will be created for all students who come to the U.S. to pursue a bachelor’s or higher degree.

• H-1B dependent employers will have to pay significantly higher wages and fees than normal users of the program.

• The job must be posed online for 30 calendar day before an H-1B petition can be filed.

• The “amnesty” part of the proposal allows folks in unlawful status to adjust their status to the legal status of Registered Provisional Immigrant Status. (RPI)

• Eligibility Criteria:

• Spouses and children, if already in the U.S., are also allowed to apply.

• Immigrants in RPI status can work for any employer and travel outside of the United States.

• Those who were present in the U.S. before December 31, 2011 but were deported for non-criminal grounds may also apply, if their parent, spouse or children are U.S. citizens and/or legal residents.

• RPI status shall last for a 6-year term that is renewable if the immigrant does not commit any acts that would render thealien deportable.  Another $500 penalty fee is due.

• After 10 years, aliens in RPI status may adjust to Lawful Permanent Resident Status through the same Merit Based Systemeveryone else must use to earn a green card if they maintained continuous physical presence, paid all taxes, learn English and Civics, etc.

• A new visa program for foreigners to work in low-skilled jobs in the U.S.

• Both the employer and the position must be registered.

• Spouses and minor children will also be allowed to come for the same duration and authorized to work.

• Workers must not be inadmissible, have no criminal background, and agree to accept only registered positions in the US.

• Approved for three (3) years initially, and extendable for another three (3) years.

• Employers must pay market wages.

• Each registered position must be posted for 30 days first on the internet.

• There will be annual visa caps beginning April 1, 2015

-        Professionals holding advanced degrees or their equivalent whose services are sought in the sciences, arts, professions, or business by an employer in the United States (including certain aliens with foreign medical degrees), and individuals with a master’s degree or higher in a STEM (science, technology, engineering or mathematics) field from an accredited U.S. institution and have an offer of employment in a related field and the qualifying degree was earned in the five years immediately before the petition was filed. (40%)

-         Skilled workers, professionals, and other professionals. (40%)

-         Special immigrants (10%)

-        Employment creation or investor visa (10%)

H-1B Program

Legalization Program for the Undocumented Immigrants

-        Residence  in  the  U.S.  prior  to  December  31,  2011  and  maintenance of continuous physical presence since then;

-        Paid a $500 penalty fee (except for DREAM Act eligible students), and assessed taxes, per adult applicant in addition to all regular fees;

-        Have not been convicted of an aggravated felony, a felony, or 3 more misdemeanors, or an offense under foreign law; unlawfully voted; or found inadmissible for Criminal, National Security, Public Health, or other morality grounds.

 W Visa - Temporary Work Program

(Note: The above is only a proposal and has no legal effect until it is signed into law.)

Understand and get ready for Comprehensive Immigration Reform (2)

The White House has released a fact sheet for its version of Comprehensive Immigration Reform.  The following is a summary of the plan:

The White House and the President recognize that reforming our broken immigration system requires responsibility from the 11 million people living in the shadows and from the employers who hire illegal workers.  The new plan must also guarantee that everyone is playing by the same rules.  The four key principles the President Obama’s plan include:

Continuing to Strengthen Border Security

Though the number of Border Patrol agents has been doubled since 2004, the President’s new proposal will further strengthen and improve infrastructure at ports of entry, and continues supporting use of technologies to secure land and maritime borders. It will create new criminal penalties to combat transnational criminal organizations in drugs, weapons and money trafficking, and human smuggling across the borders. It also includes tough criminal penalties for trafficking in passports and immigration documents and schemes to defraud. The U.S. Department of Homeland Security (DHS) will establish border community liaisons along the Southern and Northern borders to improve communication and collaboration with border communities.

Cracking Down on Employers Hiring Undocumented Workers

Our businesses should only employ people legally authorized to work in the United States. The President’s proposal is to stop the practice of knowingly employing undocumented workers and hold those companies accountable. The proposal provides tools for employers to ensure a legal workforce by using federal government databases to verify the eligibility of their employees to work in the United States. Penalties for hiring undocumented workers are significantly increased. The proposal also mandates a fraud‐resistant, tamper‐resistant Social Security card to prove authorization to work in the United States. The proposal will also protect workers against retaliation for exercising their labor rights by creating a “labor law enforcement fund” to ensure that industries comply with labor laws.

Earned Citizenship

Since it is not practical to deport 11 million undocumented immigrants living within our borders, the President’s proposal provides undocumented immigrants a legal way to earn citizenship. This proposal requires undocumented immigrants must come forward and register, submit biometric data, pass criminal background and national security checks, and pay fees and penalties before they will be eligible for a provisional legal status. Individuals must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship. Consistent with current law, people with provisional legal status will not be eligible for welfare or other federal benefits. As under current law, five years after receiving a green card, individuals will be eligible to apply for U.S. citizenship like every other legal permanent resident. An individual whose provisional lawful status has been revoked or denied, or whose application for adjustment has been denied, will have the opportunity to seek administrative and judicial review of those decisions.

Streamlining Legal Immigration

The proposal seeks to eliminate existing backlogs in the family-sponsored immigration system by recapturing unused visas and temporarily increasing annual visa numbers. It also raises existing annual country caps from 7 percent to 15 percent for the family-sponsored immigration system.  The proposal also eliminates the backlog for employment-sponsored immigration by eliminating annual country caps and adding additional visas to the system.  (These changes, if implemented, will significantly speed up the waiting time of immigrant petitions for countries such as China, India, Philippines and Mexico.)  The proposal encourages foreign graduate students educated in the United States to stay here and contribute to our economy by making it easier for advanced degree holders in science, technology, engineering and mathematics (STEM) from qualified U.S. universities to obtain a green card.  Similarly, the proposal will also provide visas to foreign entrepreneurs who plan on starting businesses here and hiring U.S. workers.  

Understanding and Getting Ready for Comprehensive Immigration Reform (1)

As the economy appears to be recovering, the November elections seem far behind us, and the issues having been discussed so many times from all possible angles, the time is finally ripe for Comprehensive Immigration Reform (CIR).  Although any CIR plan will likely encounter resistance in Congress from conservatives, a bipartisan group of senators including former presidential candidate Republican John McCain recently came together and jointly announced a plan to overhaul our immigration system and provide a mechanism for the estimated 11 million of unauthorized immigrants living in the U.S. a chance to be legalized.  Almost simultaneously, the While House also announced its own plan to overhaul the current immigration system.  While the details of these CIR plans are not yet available, there are some principals and priorities common to these proposals. 

Border Security: First of all, everybody seems to agree that a prerequisite to CIR is border security.  Although after the 911 attacks and the establishment of the Department of Home Security, tremendous amount of resources and funding have already been allocated for border security.   The issue will likely be under the spotlight again.  Most hi-tech equipment and system will be deployed to safeguard our borders and ports of entries.  New entry and visa requirements will also likely be proposed for foreign visitors.

Hurdles to Legalization:  The media likes to label any CIR as “a path to U.S. citizenship” or “a way to become American citizens.”  True, if immigration reform materializes, many unauthorized individuals will eventually be able to acquire U.S. citizenship.  However, what is being left out in the news reports is “when” and “how” these individuals may be able to do that.  Realistically, the road to getting a U.S. passport will prove to be long and winding for the undocumented.  For instance, there is always a threshold of time before which a foreign must be present in the U.S. in order to apply for legalization.  The policy is to discourage any newcomers from trying to enter the U.S. after the plan is announced.   But no matter what date we set for grandfathering, there will always be a group of individuals who would not make the cut.  Then the question becomes: What do we do with them?  Other than entry requirements, the usual requirements for permanent residence status (“green card”) will likely be used in any CIR proposal.  So for instances, individuals who have a criminal background including demeanors and DUIs, prior immigration violations, contagious deceases, etc., may not be eligible for legalization.

Changing the Legal Immigration System:  It is also clear that any new proposal will also require unauthorized individuals to wait in line for their turn for a green card.  Currently, legal immigration in many preference categories is seriously backlogged, making the waiting time for an immigrant visa extremely long.  Fortunately, in almost all CIR discussions, revamping the current legal immigration system is also under consideration.  For example, one proposal is not to count the dependents (spouses and children) when counting the visa number usage.  So a family of three will only use up one visa number instead of three.  Granting foreigners with advance technology and science degrees special visas is also part of the consideration.  The unauthorized individuals will become direct beneficiaries of these changes in the legal immigration system.

Sanctioning Employers:  Any CIR proposal will also likely contain provisions that punish U.S. employers who hire unauthorized workers.  In fact, President Obama’s proposal specifically mentions about this issue.  What is interesting is that there already exists laws and regulations in the area of employer sanctions.  Enforcement of these laws is sometimes relaxed due to political and other considerations.  One way to ensure compliance is through a computerized verification system such as E-Verify.  Currently, use of the system is voluntary.  It is possible the new CIR plan will make it mandatory for employers to use the system to verify status of all employees.   However, any new changes will also have to be balanced with the additional financial and administrative burden imposed on employers, since economic recovery is still our nation is top priority.