This week the U.S. Senate, led by the so-called “gang of eight,” released a bill that has won the cautious approval of the White House and of advocates seeking an overhaul of the broken immigration system and, principally, a roadmap to citizenship for the nearly 11 million undocumented immigrants living in the U.S. The bill, released April 17, 2013, is some 800 pages long, so a helpful cliff-notes version of the bill was released. It serves as the focal point of debate while policy wonks (yours truly) comb through the actual language of the bill. Based on the accompanying talking points to the bill, so far, this much is clear:
Even More Border Security
In exchange for bipartisan support, many of the programs targeting the “normalization” of the undocumented population are predicated upon border security along the southern U.S. border. Border security continues to be viewed through a prism of militarization, and the Senate proposal pitches border Governors, money (upwards of 6 billion), and drone technology, and other resources as the fix.
Once a border fencing plan and a long-term plan for border security are in place, the policy solutions targeted at the undocumented population may be activated. These policy solutions propose a provisional and lengthy extension of legal status named “Registered Provisional Status” or “RPI” status, for undocumented individuals who pay extensive fines and back taxes; have not committed any felonies, aggravated felonies, three misdemeanors, or any crimes involving moral turpitude; are not inadmissible for criminal, national security, public health, or other morality grounds; have not unlawfully voted in the U.S.; and do not have ANY convictions in foreign countries.
Undocumented Immigrants Must Wait a Very Long Time For A Green Card
Individuals in RPI status will receive work authorization, and once all backlogs have been cleared, and once the border has been certified secure, those in RPI status MAY be eligible for green cards upon payment of an additional fine, demonstrating continuous physical presence, demonstrating payment of taxes and an employment history, as well as a sufficient knowledge of Civics and English. By imposing so long a wait and so many conditions on status, RPI status risks being sarcastically known to many as RIP status.
Available Immigrant Visas Favor Skilled-Workers
The traditional focal point of the U.S. immigration system has been family unity and most immigrant visas (those that lead to green cards) have been allotted to family members of U.S. citizens and permanent residents. No longer. Several of the family-based green card categories may be eliminated, including those provided for siblings. The Senate bill proposes shrinking family-based immigration to spouses and children of U.S. citizens and permanent residents. The bill would expand the definition of a U.S. citizen child to include individuals up to the age of 31, and rearrange preference categories based on whether the child is married or unmarried, and whether an intending immigrant’s spouse is a U.S. citizen or permanent resident. Conspicuously, the definition of spouse continues to be restricted to opposite-sex individuals only.
Immigrant visas previously allotted for family-based immigration and from the diversity visa lottery program (which the proposal eliminates) would be re-allocated to skilled workers. Individuals holding advanced degrees and those in the science, technology, engineering, and mathematics fields would pick up those available green cards if educated at a U.S. university in a master’s program or higher. A new “start-up” visa for foreign entrepreneurs would also be created as a component of the Senate bill.
An additional system to allocate immigrant visas known as the “merit-based visa” would be available in the fifth year after the bill’s enactment and would assign number values to various prized attributes including education, employment, length of residence in the U.S., and “other considerations.” The program envisions talented individuals and those with family-members in the U.S. to score highest, and thus qualify for the 120,000 visas allotted under the merit-based program.
Temporary Visas May Become Harder to Obtain
If passed, the H-1B visa program, the primary mechanism for skilled workers to come to the U.S. on a temporary (non-immigrant) basis, may become more onerous. The bill targets so-called “job shops” or employment programs that hire a majority of foreign workers in the U.S. By heavily penalizing these employment programs, the bill seeks to make H-1B visas more available to employers who hire a majority of U.S. workers and have a supplemental foreign work force.
The bill seeks to impose significant wage requirements on U.S. employers who wish to hire foreign workers, and force those employers to conduct recruitment to certify that no U.S. worker is available prior to hiring a foreign worker under the H-1B program. These provisions will stifle innovation and deprive U.S. technology companies from hiring top international graduates of U.S. and other universities.
The bill would simultaneously create an unskilled visa category, the “W” visa, and regulate this visa in accordance with seasonal shifts in labor needs. A new federal agency within the Department of Homeland Security, the Bureau of Immigration and Labor Market Research would be established to determine visa availability.
E-Verify For All
The Senate bill imposes mandatory E-Verify, through a phase-in period, for all employers seeking to hire foreign labor and would additionally require all non-citizen employees to obtain a “biometric work authorization card” or “biometric green card” to verify work eligibility. The bill also proposes a complex photo matching verification system for ALL U.S. workers, including citizens, and a complex federal database for the storing and checking of these photos. Allegedly, due process measures will be put in place so that legal workers are not prevented from working due to errors in the system or due to employer negligence or misconduct.
Politically, it is difficult to predict if this bill has the legs to pass, but with initial White House approval, and several key groups in Washington lining up in cautious support for the bill, it does appear that the bill’s passage is possible. Numerous amendments are expected, so it is likely the final bill will look very different from this initial proposal. Please check back for further updates on comprehensive immigration reform and webinars discussing the details of the current U.S. immigration system and proposed reforms.