Immigration Reform in the 113th Congress

by Brownstein Hyatt Farber Schreck

In 2007, when a bipartisan group of senators and then President Bush tried to pass major immigration reform legislation, vocal opposition to the effort doomed the bill and any real attempt at reform since. The 2012 election changed all this. For whatever the reason, whether based on the 70 percent of Latino voters who supported President Obama, or because some people sincerely want to improve the immigration policies, or both, immigration reform has become a top priority for congressional Republicans and Democrats and the White House. Many businesses recognize, or have begun to recognize, the potential effect proposed reforms will have on their bottom line. As a result, all kinds of businesses are now becoming interested in engaging key members of Congress and the administration to make sure any such efforts are good for the nation and do no harm, that is, are good for their businesses as well. Last year alone, the number of organizations lobbying on immigration issues grew by 12 percent, with a sharp increase in advocacy expected during the first quarter of 2013.

With deep backgrounds in both the public and private sectors, Brownstein Hyatt Farber Schreck has the expertise to help businesses navigate the complexities of this process. Our team of policy advisors includes professionals with experience working on both the Senate and House judiciary committees, as well as a track record of successes engaging and influencing the administration and Congress on immigration issues. In addition, our firm boasts a Homeland Security Group that leverages unparalleled experience to help clients maximize their dealings with the Department of Homeland Security (DHS) at the federal, state and local level.

This nexus of talent has allowed Brownstein to play an active role in framing the current conversation around immigration, strategically working to define the parameters of reform within what is expected to be a limited window of opportunity. In fact, President Obama recently said he expects Congress to pass legislation “within six months,” before both chambers adjourn for the August 2013 recess.  

Based on this proposed timeline, conversations and meetings about potential legislative action on comprehensive immigration reform intensified in the first two months of this year. A bipartisan group of eight senators (the so-called "Gang of Eight") has unveiled a set of principles for comprehensive immigration reform and President Obama has laid out a four-part proposal to “fix the broken immigration system.” While broad momentum continues to build toward legislative action, it is important that businesses examine the potential impact of reform and engage and influence key stakeholders. Continued diligence is essential as proposals will continue to emerge over the next several months. As our future U.S. immigration landscape is defined, it is important to note that Congress has not tackled legal immigration reform since passage of the Immigration Reform and Control Act of 1986 (IRCA). Therefore, it should go without saying, given the instructive 2012 presidential election and the lack of action for, literally, decades, that immigration reform might actually happen this year.

As such, it is imperative that businesses and other interested parties consider several key policy issues as the immigration debate intensifies, including:

High-Skilled Tech Workers and Economic Competitiveness:

The business community supports an immigration platform that, in the absence of qualified American workers for U.S. jobs, promotes economic competitiveness by helping companies attract and retain high-skilled foreign workers in the areas of science, technology, engineering and math (STEM). Specifically, absent text of any bill outlining a more comprehensive approach, companies are pushing for passage of legislation to increase the number of employment-based nonimmigrant H-1B visas and green cards (permanent visas) for high-skilled workers. Businesses should be aware of the technical and oftentimes minute differences among the varying high-skilled worker proposals. Several tech companies, for example, have already expressed concern about the absence of an “entrepreneur visa” within the Immigration Innovation Act (I-Squared).

Other proposals to provide incentives to investment and competitiveness in the U.S. are also on the table. This includes the EB-5 Immigrant Investor Pilot Program created in the Immigration Act of 1990 to help grow the economy through foreign capital investment and resulting creation of U.S. jobs. Brownstein is already the leading firm assisting developers in attracting EB-5 capital. The firm was actively involved in recent efforts to reauthorize the program and continues managing EB-5 projects with our unique blend of legal, business and political acumen.

Restructuring the Entire U.S. Visa (Green Card) System:

Some members of the U.S. House and U.S. Senate will pursue a complete recalibration of our U.S. visa or green card system, meaning that the number of family- and employer-based visas, and how and who sponsors incoming immigrants, will change. Those seeking change would, while recognizing the importance of family connections, make more visas available to individuals based on merit. If any of these complex proposals start to gain traction in the Congress, Brownstein’s principals stand ready to advise about potential effects and to engage members of Congress and the administration on behalf of clients.

Low-Skilled Immigrant Labor:

Many employers recognize that any immigration reform effort that beefs up border security must also provide a way for them to find willing and able low-skilled workers, in both agriculture and non-agriculture, when U.S. workers are unavailable. As the economy improves, it will become increasingly important that laws allow businesses to hire the foreign workers they need without having to go through a cumbersome, unnecessarily time-consuming and inefficient process. The AFL-CIO and U.S. Chamber of Commerce recently announced a set of three principles to guide legislation addressing lower-skilled immigration. Reaching consensus will require labor and business to come together on difficult details surrounding such issues as U.S. worker recruitment, whether such workers are temporary or permanent, whether and what hourly wages an employer is required to pay, what benefits employers are required to pay beyond those guaranteed to U.S. workers, and what labor and legal protections beyond current law are provided to low-skilled temporary or foreign workers.

Congress will work to reach a delicate balance among the above-mentioned issues to protect American workers but to also provide companies easier access to a needed immigrant workforce. In a comprehensive bill, Congress will likely create a temporary worker program based on the principles laid out in the recently announced labor-business agreement.


All serious reform proposals are expected to include an expansion of the E-Verify program, which, under current law, allows employers on a voluntary basis to determine the work eligibility of their employees. Relevant members of Congress (including those senators known as the Gang of Eight and Rep. Lamar Smith [R-TX]) and President Obama have all voiced their support for a mandatory E-Verify system. Already many governmental employers are required to use E-Verify, as are most government contractors, and states have begun to impose requirements for its use by private employers in certain situations. E-Verify is a particularly sensitive program. For example, a 2011 report by the GAO detailed a series of persistent problems in the E-Verify database's accuracy.  Brownstein can help companies engage and influence Capitol Hill and the administration (including the Department of Homeland Security) about various E-Verify proposals and requirements.  

Pathway to Citizenship and Border Security:

One of the most contentious topics (and one of the underlying reasons the 2007 effort derailed) in the immigration debate centers around whether the estimated 10-11 million illegal immigrants in the U.S. a) will be given a newly created pathway to citizenship and b) when such a pathway will be available to them. President Obama is insisting that any immigration reform bill include a pathway to citizenship for most of the illegal immigrants currently living in the U.S. A leaked draft of the White House proposal on immigration reform calls for the creation of a new “Lawful Prospective Immigrant” visa that would require illegal immigrants to pass a criminal background check, submit biometric information and pay fees as part of a pathway to citizenship. The immigrants could then apply for a green card within eight years if, among other requirements, they learn English and pay back taxes.

The bipartisan Senate Gang of Eight is calling for effective changes to border security operations and increases in funding to reduce the number of illegal immigrant entries and violence along the border before such a pathway, as a part of major reform, is available. Republicans in the House of Representatives, it is believed, are working toward consideration of smaller immigration reform bills, to be considered through regular order in the House Judiciary Committee. It is also believed that smaller groups of House members are working privately toward a more comprehensive bill should the opportunity for consideration present itself.

Over the next several weeks and months, finding compromise on myriad immigration-related issues will be critical to efforts to finally pass a major legal and illegal immigration reform bill into law. Brownstein's team is fully equipped to offer services related to broad-ranging immigration reform and to a variety of other pending immigration issues, including, but not limited to: border security, interior enforcement, E-Verify worker verification, EB-5 investor visa, H1-B specialty visa and STEM-related PhD/Master’s green cards, H2-A agricultural workers, H2-B seasonal workers, green cards, religious workers, medical professionals in shortage areas, general future-flow temporary worker initiatives and others.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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