Comprehensive Immigration Reform Reenters the Spotlight

A whirlwind of events this spring have led to Comprehensive Immigration Reform ("CIR") once again making it to the forefront of national politics, reigniting the hopes of many that a bill could be drafted and passed this year. Unfortunately, however, there appears to be too much politics and not enough will power to actually get good policy through.

On April 29th, one day after President Barack Obama indicated that he would pull back from CIR in 2010 in the wake of the pressure he exerted on Congress to pass health care reform in March and while pushing for an energy and climate bill, a group of Democratic Senators unveiled their “Conceptual Proposal for Immigration Reform” and started calling on fellow Senators from both parties to join forces with them to flesh it out into an actionable bill.

Highlights of this latest CIR proposal include the following:

• Issuance of biometric social security cards within 18 days of enactment that would include an electronically coded micro-processing chip containing a unique biometric identifier for the card-bearer to serve as lawful work authorization for all those authorized to work in the U.S., including U.S. citizens. The proposal includes privacy protections such as that the information on the card could not be used by employers for any purpose other than employment verification.
• Creation of a Biometric Enrollment, Locally-stored Information, and Electronic Verification of Employment ("BELIEVE") system of employment verification that would involve scanning the biometric social security card in a scanner designed for that purpose. The BELIEVE system would take the place of all previous employment verification methods, such as E-Verify.
• A 300% increase in civil fines for knowingly hiring or continuing to employ unauthorized workers or for violating the anti-discrimination laws.
• Immediate availability of green cards for foreign students with U.S. job offers and U.S. advanced degrees in science, technology, engineering or mathematics.
• Elimination of the per-country employment-based immigration caps.
• Added requirements for employers petitioning for H-1B workers, including Internet posting of the position and expanding requirements currently only applicable to employers who are H-1B-dependent.
• Limits on the number of H-1B and L-1 employees for employers with 50 or more workers.
• Limits on the length of time for which employers may hire certain L-1 employees (with a waiver option available).
• A system for hiring lower-skilled workers that would shift according to the unavailability of U.S. workers.
• Increased requirements for employers seeking workers under the H-2B program, including payment of higher wages and advanced recruiting of U.S. workers.
• Creation of a provisional H-2C visa for non-seasonal, non-agricultural workers that would include a path to lawful permanent residence.
• Creation of a Commission on Employment-Based Immigration that would be charged with issuing employment-based immigration recommendations to Congress and would have the power to declare "immigration emergencies" requiring Congressional votes on its recommendations.
• Creation of a compulsory two-phased system for addressing the undocumented population consisting of 1) mandatory registration for Lawful Prospective Immigration ("LPI") status upon satisfaction of criminal background check and payment of fees and taxes; and 2) application for lawful permanent residence after clearing of current visa backlogs and satisfaction of additional requirements including additional background checks, fines, and English language proficiency.
• Establishment of a national birth and death registration system.
• Reaching of certain border security enhancement benchmarks prior to allowing adjustment of status by the undocumented.
• Border enforcement without racial profiling.
• Federal preemption of all state immigration laws.
• Creation of an enhanced entry-exit system that would provide for tracking and expedited removal of nonimmigrant overstays and would exclude participating countries from the Visa Waiver Program that are determined to have a high percentage of overstays.

This latest effort to enact CIR, which was co-drafted by Senate Majority Leader Harry Reid (D-NV), Senator Robert Menendez (D-NJ), and Chair of the Committee of the Judiciary's Subcommittee on Immigration, Refugees and Border Security Senator Charles Schumer (Dem.-NY), comes on the heels of Senator Lindsey Graham (R-SC) walking away from the energy and climate bill favored by Democrats for which he had been working to summon his party’s support out of reported frustration with Senator Reid for vowing to push forward with CIR in 2010. Senator Graham had up to that point been the most recent Republican Senator to visibly work across the aisle for CIR, having previously partnered with Senator Schumer in a bipartisan effort to craft a framework set forth in a jointly-authored article published in The Washington Post on March 19th that was lauded by President Obama for being in sync with discussions he had with the two Senators during the Summer of 2009.

Support from both parties, in addition to considerable pressure from President Obama, would be needed to pass CIR this year, and as this year’s election cycle heats up and the fate of the seats of several Democratic incumbents hangs in the balance, we can expect certain members to continue the rallying cry for immediate action, while others, including several Democrats, could maintain that now is not the time due to concerns about the economy and unemployment among their constituencies. On the Republican side, there have been indications that Senator John Cornyn (R-TX), ranking member of the Committee of the Judiciary’s Subcommittee on Immigration, Refugees and Border Security, could be willing to work with Democrats on this latest draft.

However, the current lack of support among many members of Congress as well as economic concerns are still not likely to push CIR back into the shadows, especially given the furor over the April 23rd passage of SB 1070 in Arizona, the law that has become notorious for its sanctioning of law enforcement officers to demand proof of legal immigration status upon “reasonable suspicion” that an individual is undocumented. That law, scheduled to take effect within 90 days of enactment if not blocked by litigation, has spurned mass demonstrations in 80 cities across the country, lawsuits, and boycotts, while highlighting the disparity among state immigration laws and the need for a rational federal immigration scheme that would cure the conflicting patchwork of laws among the states. It is interesting to note that the Solicitor General of the United States did send a brief to the Supreme Court recommending that the Court take up the other controversial Arizona Law requiring mandatory participation in E-Verify by all employers. Arizona is the focus of much of the immigration debate today.

For his part, President Obama praised the latest CIR draft in a statement issued by the White House on April 29th in which he reaffirmed his Administration’s commitment to playing an active role in engaging both sides to create a fixable solution to our broken immigration system, although he did not include a specific timeframe for doing so. The President is scheduled to speak about CIR on July 1st at American University.

In commending the CIR draft, the President noted its similarity to the earlier framework created by Senators Graham and Schumer, which consisted of "four pillars" involving a biometric social security card requirement for all U.S. workers; increased and enhanced border security and domestic immigration enforcement; a temporary worker program, including a system for admitting lower-skilled workers based on U.S. economic need; and a path to legalization for the undocumented that would include background checks and an English-language requirement. Again, the chances of a bill actually being enacted before the August recess are slim to none. Congress is embroiled in partisan politics and moreover, the Judiciary Committee has a Supreme Court nominee to contend with this Summer.