On Apr 17 2013 by William A. Stock

The New Senate Immigration Reform Bill: An Ambitious Compromise

In the immediate aftermath of the election, politicians from both parties stressed the need for a comprehensive immigration reform bill to be passed through Congress and signed by the President.

Since November, feverish work on Capitol Hill has produced many proposals, both from bipartisan groups of legislators in the Senate and the House, as well as from the President. Further details have now become available regarding the first actual bill arising from this work, negotiated by a key group of four Republican and four Democratic Senators. The bill, to be introduced this week, will be known as the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013. Once the bill is released, the full Senate Judiciary Committee will get its first detailed look at the compromises agreed to among the eight lead negotiators, and will conduct hearings and markups of the bill.

While the bill is massive, it is helpful to remember that this legislation was negotiated within a relatively unusual bipartisan consensus about the contours of any comprehensive immigration reform that was likely to be able to pass both the Senate and the House. Since the Senate’s last immigration reform attempts in 2006 and 2007, the consensus has been that any bill must deal with improving all three parts of our immigration system: continued efforts to enhance border security and interior enforcement of immigration laws; enhancing employer enforcement to make obtaining work more difficult for persons without lawful status; reforming the legal immigration system to provide viable alternatives for those who would come for work, and employers unable to find available US workers; and providing a path to permanent residence for those present without status.

The biggest headlines in the initial discussions of the bill deal with the opportunity for legality being offered to approximately 11 million people currently without status. The bill calls for individuals who entered prior to January 1, 2012 to come forward and apply for a new “Registered Provisional Immigrant” (RPI) status, which would require them to learn English, pay a fine and any back taxes they owe, remain employed, and pass criminal background checks. RPI status holders will not be eligible for any means-tested public benefits, and will continue to be ineligible for most benefits under the Patient Protection and Affordable Care Act. The RPI status will have to be renewed after six years, with an additional fine and criminal background check. RPI status would last at least 10 years, at which point applicants could apply for permanent resident status, provided that certain measures of additional border security have been met. After holding permanent resident status for at least 3 years, applicants would have the option of applying for US citizenship.

Such a program would be the largest new program in the bill, and it is helpful to consider some of the characteristics of the 11 million potentially eligible applicants. The majority of potential applicants have lived in the United States for a significant length of time – over 57% of unlawful migrants arrived in the US in the decade between 1995 and 2004, according to the Congressional Research Service, and another 34% arrived prior to 1995, meaning that fully 91% of the 11 million potential beneficiaries of this application process have been living with us for nine years or more.

The 11 million potential applicants are also likely to be working-age, with almost 4 million being males aged 25 to 44 and almost 2.8 million being females in those prime working years. They are also overwhelmingly (80%) from Mexico (57%) and Latin America (23%), according to Census data analyzed by the Congressional Research Service.

While the population of potential beneficiaries are most likely to reside in the traditional immigrant “gateway” states of California, Texas, Florida and New York, our local area does have a significant population that would benefit from a bill such as this one. According to Pew Center for Hispanic Studies analysis of 2010 Census data, approximately 160,000 immigrants without status live in Pennsylvania, and another 550,000 live in New Jersey. These immigrants represent 1.7% and 8.6% of the labor force, respectively, in those states.

Beyond the headline story regarding those without status, however, the bill also contains very significant proposed changes to the legal immigration system, proposing to eliminate three of the current categories of immigration going forward: brothers and sisters of US citizens; adult (over 30 years of age), married sons and daughters of US citizens; and the Diversity Visa lottery. These programs together currently account for about 140,000 legal immigrants per year. The bill would replace these programs with higher limits for spouses, children and parents of current permanent residents and citizens, and would create a “Merit Based Visa” program that would consider a combination of factors, including family ties, lawful residence in the United States, and work related skills. In this way, the bill would create additional paths to permanent residence, ideally providing those in the eliminated categories with new routes through which they could navigate the system and immigrate, if they wished.

The employment-based legal immigration system would also change, with both temporary and permanent visa options for high-skilled and lower-skilled, but essential, workers being expanded. Such programs have been proposed to take the pressure off of the border enforcement in times of economic growth, providing wider gates through which workers can enter when their skills are needed. Agricultural employers and worker groups, along with business and labor groups, have agreed on the framework of a new “W visa” program with separate rules for admission of new agricultural and nonagricultural workers that would admit workers in times of shortage for temporary positions that could be extended if the need continues.

On the high-tech side, the temporary and permanent resident visas, such as the H-1B visa, will be expanded, but with additional fees and restrictions for employers who rely on the H-1B for most of their workforce needs. For example, employers will eventually be limited to having no more than 50% of their workforce on H-1B visas. In addition, a streamlined path to permanent residence for graduates with science and technology degrees is part of the bill. In our region, health care and biotechnology companies will benefit in being able to hire the graduates of our region’s colleges and universities, many of whom are in the US as foreign students.

On the enforcement side, continued enhancement of the US border is a major component of the bill. The enforcement provisions not only include addition funding for physical border infrastructure such as multiple-layer fencing, but also for electronic, drone and human surveillance of the border, and additional staffing of the Border Patrol to deter entry and capture crossers. The bill also re-institutes a program through which the federal government will reimburse states for the costs of incarcerating immigrants without status if they have been convicted of crimes. Satisfactory completion of these enhancements, as noted above, will be required in order for provisional status holders to receive permanent residence.

While the border will continue to be reinforced (the additional funding will be on top of tens of billions of dollars already spent on the border each year), interior enforcement will also be made more robust. The bill requires an entry-exit system currently in place for sea and air entries to be expanded to the land border crossings, meaning that there will be a comprehensive record of when legal temporary visitors are required to depart, and when they overstay their authorized status.

Finally, all employers must be aware of their role in the enforcement provisions of the bill. The bill will require employers to enroll in the government’s E-Verify electronic employment eligibility verification system, currently used by only 500,000 of the millions of employers in the US. Employers will be responsible for using the system to check the identity and employment eligibility of all new hires (including US citizens) through this system, and to ensure that persons claiming legal status other than US citizenship to provide DHS-issued biometric identification (such as the current version of the Permanent Resident (“green”) Card, which contains a photograph and fingerprint). US citizens will also be required to provide photo identification (a passport or driver’s license), or be subject to additional identity verification measures.

The bipartisan negotiating committee had hoped to release the full bill text yesterday, but has delayed doing so in light of the Boston Marathon bombings. The details of the bill that have emerged, however, place its proposals well in the mainstream of the immigration reform proposals that have been circulated since 2000. With the current political will for immigration reform, it is a strong step forward to have a bill before the Senate that will serve as a vehicle for further debate and discussion of positive change to the US immigration system.

Reprinted with permission of The Legal Intelligencer.