Post-Election Immigration Reform

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

President Obama mentioned comprehensive immigration reform as a priority in his acceptance speech. The President has pledged to act quickly on the issue of reform, with the expectation that “…we get [an immigration] bill introduced and we begin the process in Congress very soon after my inauguration.” Such reform could potentially include a pathway to legal status for the estimated 11 million undocumented immigrants in the United States.

Approximately 70 percent of Latinos voted for Obama, who has been more receptive than Republicans to a comprehensive overhaul of immigration laws. Latinos accounted for approximately 11 percent of the electorate in 2012 (up from eight percent in 2008) and this community has been especially important in key swing states, such as Florida, Colorado, Nevada, and New Mexico. More than two-thirds of exit polls were in favor of comprehensive immigration reform.

The perception is that Republicans have alienated the Latino community, the fastest-growing demographic group in the country, on the immigration issue. Immigration policy, largely overlooked during President Obama's first term, has now re-emerged as a key issue as Republicans scurry to rebound from their election performance, motivated by the need to repair the electoral damage through comprehensive immigration reform.

The fact that Latinos cast significantly fewer votes for Mitt Romney than they had for previous Republican presidential candidates has led to an ostensible shift in the GOP’s position on immigration, forcing Republicans to reconsider their opposition to reform. In fact, following the election, many Republican Congressional leaders (including House Speaker John Boehner), well aware of the election results, the polls, and demographic trends, have stepped forward to show support for comprehensive immigration reform.

Prospects for Immigration Reform?

While the 2012 election results may provide additional motivation, compromise may be challenging. Negotiating the components of immigration reform will be a difficult process: any bill that might have bipartisan support in the U.S. Senate must also pass the House of Representatives, where many members oppose comprehensive immigration reform. Even those in favor of comprehensive immigration reform differ on the form it would take, with the main impasse being whether it would include a path to citizenship for the country’s undocumented immigrants.

  • The Obama Administration

Immigration reform appears to be a priority but it is difficult to determine where it ranks at the present.  The top priority, which has been resolved, was the economy and addressing the “fiscal cliff.” There are further ramifications of the “fiscal cliff” that have yet to be addressed. The Obama administration has, however, let it be known that the next topic on the agenda is comprehensive immigration reform.

  • Congress

As mentioned above, since the election, House Speaker Boehner has made public statements indicating the need for immigration reform and a willingness to work with President Obama.

Likewise, following the election, Senator Charles Schumer (D-NY), Chairman of the Senate Judiciary Subcommittee on Immigration, Refugees, and Border Security, and Senator Lindsey Graham (R-SC), resumed their bipartisan discussion on immigration reform. This discussion broke off two years ago, when the senators released a framework for a comprehensive immigration reform proposal. Senator Graham withdrew his support for the 2010 overhaul effort after claiming that it did not adequately secure the border.

Both senators have stated that the latest efforts at reform will include developing a secure document to assure employers that they are hiring those authorized to work in the United States, and permitting legal immigration for needed workers at all skill levels. Their proposal would include an “earned path to citizenship,” allowing those who entered the country illegally in the past to become citizens provided they learn English, go to the back of the citizenship line, have a job, and not commit crimes.

Comprehensive Immigration Reform—Basic Components

The Obama administration’s approach to immigration reform will likely entail a catch-all bill addressing the issue of undocumented immigrants while simultaneously including elements aimed at attracting and retaining highly-skilled immigrants. The basic components of comprehensive immigration reform legislation would include:

  • Increased border security measures;
  • Verification requirements for employers (e.g., E-Verify) and penalties for employers that knowingly hire undocumented workers;
  • Additional visas for highly-skilled workers; and
  • A pathway to legalization for undocumented immigrants currently in the United States who have not committed crimes (including a requirement that they pay back taxes and a potential monetary penalty, be subject to background checks, and learn English).

More limited measures are also possible, including:

  • STEM visas

In November 2012, the House passed the STEM Jobs Act (H.R. 6429), sponsored by Judiciary Committee Chairman Lamar Smith (R-TX). The bill, which was recently blocked by the Senate, would have reallocated some 55,000 immigrant visas to foreign graduates of U.S. colleges and universities with advanced degrees in science, technology, engineering, and mathematics (STEM) fields who have received a job offer from a U.S. employer. To offset the new STEM green card numbers, the bill would have eliminated the current Diversity Visa (“green card”) lottery. The Obama administration agrees with the need for more STEM green cards but opposed the STEM Jobs Act, favoring comprehensive immigration reform over dealing with immigration issues in a piecemeal manner through separate, narrowly-tailored bills.

  • More H-1B visas

The Obama administration has long voiced support for strengthening the H-1B program. The manner in which immigration reform will impact the H-1B visa is still uncertain, but it could entail an increase in the number of H-1B visas. Whether this would involve setting a new quota above the existing H-1B cap or seeking a “market-based” H-1B cap, which would increase the cap by a given percentage in any year the cap is met, remains to be seen. Also unclear is whether H-4 dependent spouse work authorization will be reviewed as part of comprehensive immigration reform. Under current law, an H-4 spouse can only apply for work authorization if he or she is the derivative beneficiary of a pending adjustment of status application (the final step in the permanent residence process).

Apart from STEM bills and H quota numbers/H-4 spouse work authorization, other potential areas for business immigration reform include L visa provisions and “green card” quota numbers.

  • DREAM Act

As part of the immigration overhaul, President Obama has stressed the need to include a provision similar to the DREAM Act. This bill, introduced in 2001, has since been put forward on an annual basis either as a stand-alone bill or an amendment to other legislation. The most recent version passed the House in December 2010 but stalled in the Senate later that same month.

  • Deferred Action for Childhood Arrivals (DACA) Remains in Place

The initiative to defer the deportation of eligible young persons without lawful immigration status was officially implemented on August 15, 2012, when the U.S. Citizenship and Immigration Services began accepting applications for “deferred action.” Deferred action is a determination to defer the removal (deportation) of an individual as an act of prosecutorial discretion. Eligible immigrants may request deferred action to remain in the United States for a renewable period of two years and are able to apply for work authorization. The deferred action offer is available to those in deportation proceedings, as well as to those who apply to the Department of Homeland Security. However, deferred action confers no temporary or permanent immigration status, nor does it provide a path to permanent residence.

To be eligible under the “deferred action” executive order, the individual must:

  • Be 15-30 years old and have entered or been brought to the United States before reaching the age of 16;
  • Have been present in the United States for five years as of June 15, 2012 (the date when this administrative action took effect);
  • Have maintained continuous residence in the United States;
  • Have not been convicted of a felony offense, a significant misdemeanor offense, or three or more other misdemeanors; and
  • Currently be enrolled in school, graduated or have a GED, or be an honorably discharged veteran.

Current Enforcement Priorities Related to Employment-Based Immigration

Auditing and fraud detection activities related to employment-based visas have increased, with a particular focus on H-1Bs. Furthermore, the focus remains on punishing employers that hire unauthorized workers through I-9 auditing.

Ogletree Deakins is monitoring developments with respect to comprehensive immigration reform and will provide updates as more information becomes available.

Note: This article was published in the December 2012, January 2013 issue of the Immigration eAuthority.

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.

© Ogletree, Deakins, Nash, Smoak & Stewart, P.C. | Attorney Advertising

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