We’ve had a lot of conversation in our office the last few weeks about the 644-page Comprehensive Immigration Reform legislation that was introduced in the House of Representatives (H.R. 4321, https://thomas.loc.gov/cgi-bin/query/z?c111:H.R.4321.IH:)
on December 15, 2009 by Luis Gutierrez (D-IL).
Before we put forth a summary of the major components of the bill, it’s important to remember that this bill is 100% a product of the Democrats (with 92 co-sponsors, all Democrats) and is an effort to change the law. However, as with all controversial legislation, the bill will be compromised, amended and will change as it moves through the legislative process with much controversial debate and competing interests. (We link to How a Bill Becomes a Law https://www.votesmart.org/resource_govt101_02.php) The bill incorporates the DREAM Act and the Emergency Nursing Supply Relief Act as well as a wide range of key immigration issues, attempting to address them comprehensively rather than through piecemeal legislation, including changes to the H-1B and L-1 programs.
It is expected in January or February that Senator Chuck Schumer (D-NY), the Chair of the Senate Immigration Subcommittee, will introduce a bi-partisan, major immigration reform bill in the Senate. The bill is expected to be less lenient in regard to earned legalization of the undocumented, and will have tougher enforcement provisions than the House Bill.
We highlight some of the most significant proposed changes:
A. Legalization for the Undocumented Foreign Nationals:
The bill provides relief for the undocumented who are in the USA on December 15th who can evidence that they are employed, undergo a criminal background check, learn English and pay a $500 in order to obtain a 6-year nonimmigrant visa that would potentially lead to permanent residence (a green-card). So as not to provide the undocumented with advantages over others who entered the USA lawfully, permanent residency benefits would not be available before 6 years.
B. Employment-Based Immigration Recapture of Unused Immigrant Visa Number from 1992 – 2008:
If 140,000 immigrant visa numbers are not used by September 30th of each fiscal year, the remaining numbers are basically thrown away. This bill would drastically change this system so that the remaining visas would be carried over to the next year. Additionally, it would recapture all unused visas from 1992 – 2008 that would clear up the backlogs in the system. It is estimated that the available visas number in the hundreds of thousands!
C. Employment-Based Exemption from the Annual Visa Cap: As with the family-based system of immediate relatives of US citizens being exempt from numerical limits, the new bill would make the following categories exempt from the EB cap:
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Schedule A Shortage Occupations: RNs and PTs
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STEM Workers: Foreign nationals with master or Ph.D. degrees in Science, Technology, Engineering or mathematics who have worked in the USA
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Foreign Students with Masters or higher degrees from US universities
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Recipients of medical specialty certification based on postdoctoral training and experience in the USA
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Recipients with approved National Interest Waivers
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Spouses and children of the principal applicant in the above categories
D. Early Applications for Adjustment of Status (Green-Cards):
This would permit persons with approved EB petitions to immediately apply for adjustment of status, even if their priority dates are not yet current. This is significant and will change the lives of many of our clients and readers because you’ll be able to obtain both employment authorization (EAD) and travel authorization in 3-year increments, no longer having to continually extend your H-1B or other nonimmigrant status – and possibly contemplate AC21 portability benefits. Those that choose to do this will be subject to a government fee of $500. What with the current retrogression situation and the backlog of up to 7+ years, this will be welcomed relief.
E. Exemptions from PERM:
Two other categories would be exempt from the labor certification process: Recipients of master’s or higher degrees from US universities and medical specialty certification based on postdoctoral training and experience in the USA.
F. Increase in Per-Country Quotas:
The per-country limitation per year would be increased from 7% of the total (9,800) to 10% (14,000).
Conclusion:
President Obama has indicated that he wants an immigration bill passed in 2010. There have been more pressing issues that have overshadowed the immigration debate that has pushed it to the back burner…immigration enforcement issues (remember the fence?), the war on terrorism, the economy, healthcare reform and various other political issues that seem to always delay immigration reform.
Recent history has proven that immigration law is highly controversial and, as a result, politicians don’t want to deal with it in an election year. We’re in an election year again - in November 2010. Our supervising attorney, Tom Joy, is convinced that the election year issue will arise again to prevent any meaningful immigration reform. One wonders if Obama really wants the immigration reform that he campaigned for in order to get elected. He got what he wanted in the election – the Hispanic vote, and now it’s time to deliver the immigration reform that he promised. There seems to be too many people wanting too much from immigration reform – and too many people wanting no immigration reform – just enforcement. It’s hard to fathom that Congress will want to take on this debate just ahead of the 2010 elections. Only time will tell and, as Tom has stated, “Politics can cause strange things to happen!” We have often stated that the best way to immigration reform is to divide the issue into legal immigration reform and illegal immigration reform. By so doing, there is more focus on each issue with the issue of illegal immigration not disproportionately affecting the issue of illegal immigration reform.
Tom further brought up an excellent point – “as the economy goes, so goes the focus on immigration. A poor economy leads to more enforcement and anti-immigrant feelings. As a result, we are less likely to see meaningful legal immigration reform in a poor economy. In a good economy, there is much less emphasis on enforcement. If and when the economy improves, we are more likely to see progress on immigration legislation”
For now, we’ll wait and see how all this plays out on the legislative stage.
