Post-Election Immigration Reform – What’s At Issue?

The prospect of comprehensive immigration reform appears to be gaining momentum. In January, a bipartisan group of eight senators announced a broad proposal for immigration reform (“Bipartisan Framework for Comprehensive Immigration Reform”) and, one day later, President Obama laid out his vision for comprehensive immigration reform. In addition, among numerous new stand-alone business immigration bills that have also been recently announced, the Immigration Innovation Act of 2013 (“I-Squared Act”) was introduced by another bipartisan group of senators.

Bipartisan Framework for Comprehensive Immigration Reform

The Senate proposal has four basic elements: (1) a path to legalization for illegal immigrants; (2) increased border security; (3) increased employer verification requirements; and (4) increased employment-based immigration. Illegal immigrants would pay monetary penalties to legalize but would not be eligible for permanent resident status until other enforcement-related measures are in place (such as increased border security).

The proposal would also increase certain types of employment-based immigration and allow individuals who have an advanced degree in science, technology, engineering, or mathematics (STEM) from a U.S. university to obtain permanent resident status. The proposal includes increased fines and criminal penalties for employers that knowingly employ unauthorized workers.

Highlights of the proposal include:

• Increased border security (additional unmanned drones, surveillance equipment, and border agents);
• An entry-exit system to monitor visa overstays;
• A commission to provide a recommendation as to whether increased border security measures have been completed;
• A government registry for illegal immigrants who must pass background checks, pay fines, and back taxes in order to obtain temporary legal status (when increased border security measures are completed, they can apply for permanent resident status behind others who have already applied);
• A quicker path to legalization for foreign nationals who were brought to the United States as children;
• A reduction in the immigrant visa backlogs for both family-based and employment-based immigration;
• Permanent resident status for individuals who have an advanced degree in a STEM field from U.S. universities;
• Electronic verification of employment authorization and identity for new hires;
• Increased fines and criminal penalties for employers that knowingly employ unauthorized workers;
• Increased employment-based immigration where it can be demonstrated that employment of a foreign national would not displace U.S. workers;
• Creation of an agricultural worker program;
• Increased or decreased immigration for lower-skilled workers as needed depending on economic conditions; and
• Permanent resident status for long-term employees who have contributed to the community and to the workplace.

The White House

Initial reaction from the White House to the Senate’s proposal has been positive and, with a similar bipartisan effort underway in the House, the prospect of comprehensive immigration reform seems a possibility. President Obama has made comprehensive immigration reform a priority, referencing the idea in recent speeches, including the State of the Union address.

The President expressed his support for the principles underlying the Senate comprehensive reform framework, but pledged to send his own reform bill to Congress if members fail to act quickly. The White House’s own framework for “common sense immigration reform” is based on the following principles:

• Strengthening border security (focusing enforcement resources on preventing those intent on harming the United States from entering the country);
• Streamlining legal immigration (including adding more immigrant visa numbers,  eliminating annual country caps on immigrant visas, creating new visa programs for foreign investors and entrepreneurs, and “stapling” green cards to the diplomas of foreign nationals who earn a U.S. advanced degree in a STEM field);
• Creating a path to earned citizenship for undocumented immigrants (including registering and undergoing national security and criminal background checks, paying taxes and a penalty, and learning English before they can become eligible for citizenship); and
• Cracking down on employers that hire undocumented workers (a plan that includes mandatory, phased-in electronic employment verification, significantly increasing penalties for hiring undocumented workers, and establishing new penalties for committing fraud and identity theft).

Immigration Innovation Act of 2013 (I-Squared Act)

The purpose of the bill is to increase U.S. competitiveness by making it easier for employers to recruit and retain highly-skilled workers. The proposed legislation makes market-based changes to the number of H-1B visas and immigrant visas (“green cards”) available to these highly-skilled workers who currently are in short supply.

H-1B Visas

The bill increases the current number of available H-1B visas for highly-skilled workers and makes that number adjustable based on market demand. The current quota of 65,000 for new H-1Bs per fiscal year would be raised to 115,000, and could be adjusted up to 300,000 per year depending on the demand in a given year. Likewise, the H-1B cap could be adjusted downward if the baseline cap is not reached in a given year. The bill also eliminates the cap on the existing exemption for holders of U.S. advanced degrees, currently limited to 20,000 per year, and provides for spouses of H-1B visa holders to be “employment authorized.”

Employment-Based Green Cards

The proposed legislation also revises the current process for the allocation of employment-based green cards. The bill allows for the recapture of unused green cards that were approved by Congress but, due to delays, were lost. Under the bill, any unused employment-based green cards would roll over to the next fiscal year. Annual per-country limits for employment-based green cards would be eliminated and per-country limits for family-based green cards would be adjusted, depending on demand, allowing additional access to permanent residence.

In addition, certain groups would be exempt from the green card numerical limitations, namely: students who have earned a U.S. master’s or higher degree in a field on the Department of Homeland Security (DHS)-approved STEM list; dependents of principal employment-based immigrant visa recipients; individuals of extraordinary ability; and outstanding professors and researchers. Students would no longer be required to maintain “nonimmigrant intent,” i.e., they would not have to maintain a residence abroad that they have no intention of abandoning.

Stay Tuned

Immigration reform is a highly divisive issue and could face significant opposition in Congress as did the last attempt in 2007, which failed. Ogletree Deakins is monitoring developments with respect to comprehensive immigration reform and will provide updates as more information becomes available.