Immigration Reform Discussions Underway in Washington


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Immigration Reform Discussions Underway in Washington

  1. 1. FEBRUARY 25, 2013 IMMIGRATION CLIENT ALERT This Alert provides only general information and should not be relied upon as legal advice. This IMMIGRATION REFORM Alert may be considered attorney advertising under court and bar rules in certain jurisdictions. DISCUSSIONS UNDERWAY IN WASHINGTON For more information, contact your Patton Boggs LLP attorney or the In the weeks since President Obama and the Senate’s bipartisan Gang of Eight authors listed below. both announced their set of principles for comprehensive immigration reform, a heightened debate of how reform will come to fruition has taken hold in the KRISTIN WELLS 202.457.6422 Senate, House of Representatives and White House. On February 5, the House Judiciary Committee held a full committee hearing focused on reforms needed to SHAUOL ASLAN bring high skilled workers into the U.S. and the problems that resulted from the 202.457.6095 1986 Immigration Reform and Control Act (IRCA). On February 12, the President referred to immigration reform as a priority in his State of the Union address and later held meetings with key stakeholders in the reform effort. On February 13, the Senate Judiciary Committee held its full committee hearing on ABU DHABI comprehensive immigration reform, largely focused on the testimony of ANCHORAGE Homeland Security Secretary Janet Napolitano. DALLAS DENVER Below we discuss four key issues raised in these early hearings: the path to DOHA legalization for undocumented residents, border security, visas for highly skilled NEW JERSEY NEW YORK immigrants, and visas for agriculture workers. RIYADH WASHINGTON DC PATH TO LEGALIZATION The House hearing identified a notable hurdle in the road to achieve comprehensive immigration reform – a path to citizenship for the 11 million undocumented who are already present in the United States. Committee Democrats – and witness Julian Castro, Mayor of San Antonio, Texas – followed the President and the Senate’s Gang of Eight principles by emphasizing the need for a legalization path that would result in citizenship for those who meet certain conditions. Some Republicans on the Judiciary Committee supported legalization for the undocumented, but were critical of providing a path to citizenship Client Alert 1
  2. 2. these residents in the future. In particular, former immigration attorney and freshman Representative Raúl Labrador(R-ID) said that during his law practice working with undocumented people, “Not very many people told me ‘I wantto be a citizen.’” He went on to say, “If we can find a solution that is short of a pathway to citizenship but better thanjust kicking 12 million people out, why is that not a good solution?”Since the hearing, House Majority Leader Eric Cantor (R-VA) has offered his support for a path to citizenship forpeople brought to the U.S. illegally as children. In his Tea Party response to the State of the Union, Senator Rand Paul(R-KY) suggested the Republican party welcome hard workers who want to become American. Some House andSenate Republicans have suggested they may be able to support a path to citizenship with the following requirements:a secured border; stringent standards and penalties for immigrants; enactment of a system to prevent people fromoverstaying on legal visas; lengthy waits for undocumented applicants at “get at the back of the line;” control of illegalhiring; and creation of an effective temporary worker program. Rep. Labrador seemed to change his tone after thehearing when he said compromise might be possible with the development of a more modern immigration system.However, Judiciary Committee Chairman Bob Goodlatte (R-VA) has said he does not support legalization that leadsto citizenship, so this issue is far from resolved.HIGH SKILLED VISASPoliticians on both sides of the aisle seem to agree on the need for more available visas and an easier, welcomingimmigration system for highly skilled immigrants, especially entrepreneurs and those working in the STEM areas ofscience, technology, engineering and mathematics. In the State of the Union address, President Obama said, “Oureconomy is stronger when we harness the talents and ingenuity of striving, hopeful immigrants,” noting that “realreform means fixing the legal immigration system to . . . attract the highly-skilled entrepreneurs and engineers that willhelp create jobs and grow our economy.”The House Judiciary Committee devoted much of its first hearing to the need for high skilled visas. Members quizzedwitnesses about the easy availability of visas for highly skilled immigrants in other Western nations and discussed theneed for reform of the H1-B program that effectively caps the number of high skilled workers that can enter thecountry and is restrictive to spouses of such immigrant workers. The Gang of Eight’s immigration reform principlessay “our immigration proposal will award a green card to immigrants who have received a PhD or Master’s degree in[STEM fields] from an American university. It makes no sense to educate the world’s future innovators andentrepreneurs only to ultimately force them to leave our country at the moment they are most able to contribute toour economy.”H1-B visas are available for 85,000 immigrants a year filling high skilled positions that require “specialized knowledge”in their fields. Currently, the 65,000 H-1B visas available to high skilled workers in the private sector are in heavydemand by U.S. technology companies seeking to attract workers from abroad to fill technical jobs that they Client Alert 2
  3. 3. unable to fill due to a lack of qualified American workers. Of the 85, 000 total, only 20,000 are reserved for workerswith graduate degrees from U.S. universities (an unlimited number of H-1Bs are available for high skilled workers inqualifying academic or research institutions). Since the H-1B visa was established in 1990, applications have nearlyalways exceeded the number of visas offered, including recent years. Often the H-1B cap is reached within days of thefiling window’s opening, requiring a lottery to determine which applications will even be adjudicated.High skilled visas were also a central topic at the Senate Judiciary hearing. Senator Sheldon Whitehouse (D-RI)expressed his support for the bipartisan “Immigration Innovation (I2) Act of 2013” (S. 169), which addresses theshortage of visas for highly skilled workers and is sponsored by prominent Senators Orrin Hatch (R-UT), AmyKlobuchar (D-MN), Chris Coons (D-DE), and Marco Rubio (R-FL). The bill is designed to attract and retain highlyskilled immigrants by expanding the number of available H-1B visas and improving the ability of high skilled foreignworkers to change employers. This bill would immediately increase the standard H1-B visa cap from 65,000 to115,000, and implement a market-based escalator that could raise the cap further based on market demand. The billfurther uncaps the number of H-1Bs available to graduates with a U.S. advance degree (currently 20,000) and makesgreen cards available to foreign students who graduate from U.S. universities with science, technology, engineeringand mathematics (STEM) degrees. Under the bill, a proposed increase in fees for H-1Bs and certain green cardswould generate approximately $300 million a year for investment in domestic STEM education and U.S. workerretraining programs.Senator Whitehouse noted that “encouraging highly-skilled immigrants, engineers, and entrepreneurs to stay, and tolocate in this country is good for American jobs, and is good for the American economy, rather than competing anddisplacing American jobs and the American economy.” Secretary Napolitano responded that “the case for high-skilled, and -- and STEM educated workers is extraordinarily strong. We know we need more of them in the country.They compliment, not substitute for American workers. They become job creators. They add to economic growth.Some of our nation’s most successful companies over the last decade, even through the recession were companiesthat were either started by, or run by those who came here originally as immigrants. So it is a global talent pool that wewant to have in the United States. We want to be a magnet for those types of individuals, because in the end they arejob creators.”Hearing witness Steve Case, former Chairman of AOL, noted “We must draw the best and brightest from around theworld and develop our own through education.” He said that while China, Australia and Canada have visa programsto attract talented workers in the STEM fields, the United States is forcing one-third of its STEM graduates to leavethe U.S. once the obtain their degrees. This month, STEM Visa Act of 2013, which aims to promote innovation,investment and research through visa reform, was introduced by Rep. Darrell Issa as H.R. 459 in the House and asS. 303 introduced by Senator David Vitter (R-LA) in the Client Alert 3
  4. 4. AGRICULTURAL WORKERSThe House and Senate hearings also displayed Members’ and Senators’ strong concerns for the farmers in theirdistricts and states, who are facing severe challenges in workforce management in the agricultural sector. In the Househearing, California members on both sides of the aisle argued for reforming the H-2A program, which bringstemporary agricultural workers to the U.S. California Representative Zoe Lofgren (D) stated, “We have 2 millionmigrant farm workers and 80 or 90 percent of them are here without their papers. They are providing a vital service tothe United States. You could do e-Verify and find out they’re not properly here, and American agriculture wouldcollapse. So that’s not going to be helpful. What we need to do is provide a system that will actually meet our needs inour economy.” In the Senate, Chairman Patrick Leahy (D-VT) queried Secretary Napolitano on how to reform thisvisa program to assist Vermont dairy farmers who cannot find Americans willing to do farm work. H-2A visas areseasonal but dairy farmers want to be able to use these visas year round for dairy work. Responding to both ChairmanLeahy and Senator Al Franken (D-MN) (who raised the same concern on behalf of dairy farmers in Minnesota),Secretary Napolitano said that the Obama Administration supports H-2A visa reform and would like to see statutorychanges that would fix the problems faced by dairy farmers.Proposals for reform of the H-2A visa have included changes to the requirements placed on employers, such asflexibility with Department of Labor wage rates, easier visa approvals and changes to the benefits they must pay totheir workers. In addition to access to a legal visa, workers have wanted portability with their visas so they can workfor other employers, and coverage under minimum wage and other worker protections. Some growers have concernsthat legalization with portability or citizenship will cause them to lose current or recruited workers. On February 26,2013, the House Subcommittee on Immigration will be holding a hearing on “Agricultural Labor Visa Programs” toexamine these problems in more detail.BORDER SECURITYWith Secretary Napolitano as the Administration’s witness, much of the Senate Judiciary hearing focused on bordersecurity issues. She noted that the enforcement environment is dramatically different from 1986 when IRCA waspassed. At that time there were only 3,000 border patrol agents; now there are 21,000. At that time there was a shortchain link fence on part of the border; now there is 655 miles of secure fence infrastructure. In 1986, the INSremoved 25,000 undocumented people from the U.S.; in 2012, 409,000 undocumented people were removed. “Theseefforts must be sustained and built upon,” she said, “and we have to get at the demand for illegal immigration, and wehave to deal with legal migration into the country.”Some Senators remained critical of the Administration’s border security efforts. Senator Jeff Flake (R-AZ) emphasizedthe need for certification of a secure border before a legal path to citizenship could be implemented, and he urged theagency to resume its operational control methods of border security on the southern border. Other senators Client Alert 4
  5. 5. concerns about visa overstays, the entry-exit system and worksite enforcement. Senator John Cornyn (R-TX) alsoemphasized these concerns; “I believe that the reason that immigration reform failed in 2007 is because the Americanpeople don’t actually believe that Congress intends to follow through on important measures like border security,work site enforcement, visa overstays and the like,” he said. Senator Jeff Sessions (R-AL) added, “Madam Secretary, Itruly believe had this administration done a better job of enforcement, been more effective in moving forward with alawful system of immigration, you would be in a much stronger position with the American people to ask for a morebroad solution to the problem.” Senator Chuck Grassley (R-IA) asked the Secretary to provide an inventory of actionsthat can be taken on the border that have not already been accomplished.NEXTLast week, parts of the White House plan for immigration reform were leaked, causing great ire and upset on CapitolHill. Legislators are concerned that such leaks could prevent or destroy the careful bipartisan balance they are trying tostrike. Sen. Rubio called the proposals “dead on arrival.” Whether any of the Administration’s proposals do gaintraction in introduced legislation remains to be seen. In addition, the U.S. Chamber of Commerce and the AFL-CIOannounced an agreement between business and labor to guide talks on low skilled workers. While agreementsbetween these two sectors will be critical to a political compromise, the depth of this agreement and its usefulness inthis current stage of the immigration debate are yet to be seen. In the future weeks, hearings, negotiations and debateswill continue to highlight the political strengths and pitfalls of these reform ideas and will affect the public discussionof how the U.S. will reform its immigration Client Alert 5