The Second Obama Term: President Outlines Major Immigration Overhaul

by Morgan Lewis

Second term begins with an increased focus on immigration issues; Congress signals bipartisan agreement on similar principles.

On January 29, just a few weeks after President Barack Obama reconfirmed his commitment to immigration reform in his inaugural address, he delivered a speech calling for an overhaul of the nation's immigration laws. The White House posted the details of the administration's proposal on its website the same day. Almost contemporaneously, a bipartisan group of senators released a blueprint for comprehensive immigration reform that contained provisions similar to the White House proposal. In his January 29 speech, the president stated that he would allow Congress to hammer out its own immigration reform proposal but asked that work be completed on such a proposal quickly. He stated that the administration will have its own proposal introduced if Congress stalls or does not make sufficient progress on the issue.

Both the president's proposal and the bipartisan Senate blueprint focus on the following major areas:

  • Creation of a program allowing undocumented immigrants to obtain citizenship. Both proposals outline a program that would allow undocumented immigrants to come forward, register with the government, pay a fine and any back taxes, and be placed in a provisional work-authorized status with the ability to obtain lawful permanent residence (green cards) and ultimately citizenship. Under the Senate proposal, before undocumented immigrants are able to obtain green cards, certain proposed enforcement measures relating to border security must be complete. Under both the White House and Senate proposals, undocumented immigrants in their provisional work-authorized status would also have to "go to the back of the line" in order to await their green cards. This means that they would not attain lawful permanent residence status until all current backlogs for those who have already applied to immigrate to the United States are cleared. Both proposals contain certain provisions aimed at clearing these backlogs. The White House proposal would expedite green cards for "Dreamers"—children brought to the United States who are undocumented through no fault of their own—while the Senate proposal would expedite green cards for Dreamers and certain agricultural workers.
  • Enhancement of border security. Both proposals call for additional border security measures, including providing the Border Patrol with state-of-the-art technology and equipment. The Senate proposal specifically mentions completion of an entry-exit system to ensure that those who come to the United States temporarily depart in a timely manner. The Senate proposal also calls for strengthening prohibitions on racial profiling, and the White House proposal discusses improving immigration courts by adding judges.
  • Improvements to employment verification. Both proposals discuss use of a reliable federal electronic employment verification system that would be mandatory for all employers. While not referring to the current federal electronic verification program by name, it is commonly believed that both proposals are referring to E-Verify. The ultimate legislation may authorize enhancements to the reliability of E-Verify. The proposals also include certain procedural safeguards to protect American workers, prevent identity theft, and offer due process protections.
  • Improvements to the legal immigration system. Both proposals would seek to reduce green card backlogs in the family- and employment-based systems and offer new green card categories for graduates in the fields of science, technology, engineering, and mathematics. The White House proposal would also create a "start up" visa for certain foreign entrepreneurs and make permanent the program that allows investors to obtain green cards through investing in "regional centers" (pooled investment vehicles).

The White House and Senate proposals also contain some differing points. For example, the Senate proposal addresses "future flow"—the issue of providing a mechanism to regulate immigration and tune it to the country's economic and labor needs in the future. The White House proposal is silent on future-flow issues. While the Senate proposal mentions family immigration generally, the White House proposal indicates that it would seek to keep families together by increasing family-based immigration quotas and by giving U.S. citizens and lawful permanent residents the ability to seek a visa on the basis of a permanent relationship with a same-sex spouse.

The legislative landscape on immigration reform is in a state of constant flux. In the days following the issuance of the Senate and White House proposals, several additional announcements were made, including an announcement that a group of lawmakers in the House of Representatives is working on its own proposal; the introduction by four U.S. senators of the Immigration Innovation Act, a bill that would expand the number of skilled foreign workers that American companies can hire; and the reintroduction of the Legal Workforce Act, a 2012 bill relating to employment verification. We will continue to monitor developments both within the Obama administration and on Capitol Hill and will provide updates as new proposals emerge.


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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