News Update - March 30, 2013

Comprehensive Immigration Reform Takes a Step Forward

With news on March 29, 2013, that the bipartisan Gang of 8 senators (Senators Charles Schumer (D – NY), John McCain (R – AZ), Richard Durbin (D – ILL), Lindsey Graham (R – SC), Robert Menendez (D – NJ), Marco Rubio (R – FLA), Michael Bennet (D – CO), and Jeff Flake (R – AZ) ) who are presently leading the charge on comprehensive immigration reform (CIR) were nearing agreement with interested parties over the issue of lower skilled workers which helped waylay CIR efforts in 2007, it appears that the road is clear for introduction of the legislation into the Senate when it returns in the second week of April. The tussle between the Chamber of Commerce and businesses which advocate the need for such workers against the labor unions which fear the erosion of jobs for Americans is reportedly being resolved by a cap on numbers (200,000), agreement on using the prevailing wage rate of the guest worker program, and for a higher rate if the cap is filled and employers apply for and are granted an exception. Between the Administration and the Gang of 8, there is general agreement that undocumented immigrants who apply will not receive a green card for 10 years, but afterwards will be able to expedite citizenship by waiting another 3 years. The Administration had earlier expressed support for the issuance of the green card in 8 years, with a regular path to citizenship in another 5. The 10 and 3 approach was better favored by the Republicans as helping the economy by limiting the benefits available to this class of individuals for another 2 years.

Other than these points, the Gang of 8 are being fairly close-mouthed concerning the process of negotiation although a large concern appears to be that Republicans will attempt to introduce a zero-sum game between the employment and family-based preference categories. Instead of increasing the number of people who can immigrate to the States, they would limit or completely shut family categories and transfer the available numbers to the employment categories on the theory that those who immigrate under a worker category are more likely to benefit the country than those whose only qualification is relationship to someone with legal status here. The visa lottery is also front and center in this zero-sum game as selection there only depends upon being picked by random drawing.

A large part of the upcoming debate will include how to assess border security before any of the CIR legislation kicks in. To demonstrate their commitment to the issue, members of the Gang of 8 a few days ago visited the state of Arizona which is currently the hot fire zone of illegal immigrant passage. Negotiation on the question of border security will likely include the ability of the Department of Homeland Security and specifically Customs and Border Protection to lay down markers of progress on an exit system to successfully track the leaving of those who have entered the U. S. on legal visas.

With a look towards the economy, and with many legislators believing that any CIR effort should be cost free to American taxpayers, a large question is what amount applicants under the program will have to pay. Liberal minded individuals believe that they should pay a nominal fee, such as $250. But Congress is likely to demand hefty fees and fines along with mandatory payment of back taxes. A look back at the failed 2007 CIR effort shows that even then the “Z” visa application fee per person was $1500, penalty fee $1000 for the head of household and $500 for each family member, a state impact assistance fee of $500 per household, renewal fee of $1500 per person since that legislation also contemplated a long period of time (8-13 years) before applicants could receive a green card, and a $4000 penalty per head of household before the final green card would be given. Applicants who could not pay the back taxes were instructed to enter into taxpayer agreements with the IRS. In an effort to soften the blow, positive reports concerning the benefits of immigrants to this country have appeared recently with the Center for American Progress stating that granting undocumented immigrants immediate citizenship would add $1.4 trillion to economic growth, increase tax revenues by $184 billion and create 203,000 jobs over the next decade, and the University of Southern California Demographers for the Mortgage Bankers Association saying that foreign-born homeowners in the U. S. will represent 36% of the net growth in homeowners between 2010 – 2020 and that they represented 82% of the growth in homeownership in California and 65% in New York from 2000 to 2010.

The Gang of 8 has momentum and bipartisanship on its side, but its proposed legislation could become sidetracked by later competing House legislation. If history is any guide, the road ahead will not be easy and many compromises will have to be made before a final bill can be signed by the President. But if CIR is to be passed, it will be now as the winds favor it like no other time in the recent past, there are no other major pieces of legislation which threaten to dominate the attention of Congress, and both parties are highly motivated by the presidential politics of 2012.

† The author is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory, registered in the Bar Register of Preeminent Lawyers, and on the New York Super Lawyers list for 2011-2012 and recognized as a New York Area Top Rated Lawyer in 2012.. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

‡ This article © 2013 Alan Lee, Esq.

Copyright © 2003-2013 Alan Lee, Esq.
The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.