Immigration Reform BattleMarch 5, 2013

As tensions run high between the Obama Administration and Congress over budget cuts and spending, another battle looms in the background. Immigration reform is the next big issue for the government to resolve. Like two prize fighters preparing to step into the ring, both sides have already begun the pre-fight hype. Both Congress and the Obama Administration have outlined their visions of America’s future immigration policy through proposals. Below is a look at each plan and the effects the pending immigration reform will have on America in the coming years.

Bipartisan Framework for Immigration Reform

In late January, a bipartisan group of senators agreed on a set of principles for a sweeping overhaul of the immigration system, including a pathway to American citizenship for 11 million illegal immigrants that would hinge on progress in securing the borders and ensuring that foreigners leave the country when their visas expire. This group of four Republicans and four Democrats included senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet and Flake.

The senators were able to reach a deal by incorporating the Democrats’ insistence on a single comprehensive bill that would not deny eventual citizenship to illegal immigrants, with Republican demands that strong border and interior enforcement had to be clearly in place before Congress could consider legal status for illegal immigrants. The plan was created in an effort to provide Congress with guideposts that would allow legislation to be drafted at the end of this month. Below are the key points of the bipartisan groups proposal:

• The proposal would allow undocumented immigrants with otherwise clean criminal records to quickly achieve probationary legal residency after paying a fine and back taxes.
• Immigrants could pursue full citizenship — giving them the right to vote and access to government benefits — only after new measures are in place to prevent a future influx of illegal immigrants.
• Undocumented immigrants seeking citizenship would be required to go to the end of the waiting list to get a green card that would allow permanent residency and eventual citizenship, behind those who had already legally applied at the time of the law’s enactment.
• Two groups identified as deserving of special consideration for a separate and potentially speedier pathway to full citizenship: young people who were brought to the country illegally as minors and agricultural workers.
• The plan also addresses the need to expand available visas for high-tech workers and promises to make green cards available for those who pursue graduate education in certain fields in the United States.
• Legislation would require the completion of an entry-exit system that tracks whether all persons entering the United States on temporary visas via airports and seaports have left the country as required by law reducing future illegal immigration.
• Creation of an employment verification system that will hold employers accountable for knowingly hiring undocumented workers and make it more difficult for unauthorized immigrants to falsify documents in order to obtain employment. Employers who knowingly hire unauthorized workers will face stiff fines and criminal penalties for egregious offenses.

Although the bipartisan plan provides a good framework, many details remain to be negotiated before legislation can be introduced. This includes the difficult question of how the government would verify that enforcement has been sufficiently enhanced to allow an expanded pool of legal residents to seek citizenship.

Obama Administration Immigration Reform Plan

A draft of a White House immigration proposal was leaked in mid-February and obtained by USA TODAY. According to the February 18^th, USA TODAY article, the Administrations immigration plan would allow illegal immigrants to become legal permanent residents within eight years. The plan also would provide for more security funding and require business owners to check the immigration status of new hires within four years.

In addition, the nation’s 11 million illegal immigrants could apply for a newly created “Lawful Prospective Immigrant” visa, under the draft bill being written by the White House. As expected, the push back from Congress regarding the leaked Administration immigration plan has been swift and severe. In an effort to control the damage caused by the leaked plan, the Administration stated its plan is merely a backup in the event Congress fails to act and produce immigration legislation by the end of March. Below are the key points of the Administrations immigration plan:

• The bill mirrors many provisions of the bipartisan 2007 bill that was spearheaded by the late Sen. Ted Kennedy, D-Mass., and Sen. John McCain, R-Ariz., which ultimately failed.
• Immigrants would need to pass a criminal background check, submit biometric information and pay fees to qualify for the new visa. If approved, they would be allowed to legally reside in the U.S. for four years, work and leave the country for short periods of time. After the four years, they could then reapply for an extension.
• Illegal immigrants would be disqualified from the program if they were convicted of a crime that led to a prison term of at least one year, three or more different crimes that resulted in a total of 90 days in jail, or if they committed any offense abroad that “if committed in the United States would render the alien inadmissible or removable from the United States.”
• People currently in federal custody or facing deportation proceedings also could be allowed to apply for the Lawful Prospective Immigrant visa. Application forms and instructions would be provided in “the most common languages spoken by persons in the United States,” but the application and all supporting evidence submitted to the federal government would have to be in English.
• Immigrants would be given a new identification card to show as proof of their legal status in the country.
• Immigrants could then apply for legal permanent residence, commonly known as a green card, within eight years if they learn English and “the history and government of the United States” and pay back taxes. That would then clear the path for them to apply for U.S. citizenship.
• To combat fraud, the draft proposes a new Social Security card be developed that is “fraud-resistant, tamper-resistant and wear-resistant.” The Social Security Administration would be required to issue the new cards within two years.
• A major requirement for many Republicans is enhanced border security. The bill calls for an unspecified increase in the Border Patrol, allows the Department of Homeland Security to expand technological improvements along the border and adds 140 new immigration judges to process the heavy flow of people who violate immigration laws.
• It also orders U.S. Customs and Border Protection (CBP) to study whether a land-border crossing fee should be implemented to help offset border security costs. The draft also proposes raising many inspection fees that border-crossers already pay.
• The draft also expands the E-Verify program that checks the immigration status of people seeking new jobs. Businesses with more than 1,000 employees must begin using the system within two years, businesses with more than 250 employees within three years and all businesses within four years.

Although comprehensive in many areas, the draft Administration plan does not include sections that would alter the nation’s legal immigration system to adjust the future flow of legal immigrants, which is expected to be a critical component of any immigration overhaul.

Future Immigration Policy

Which plan will be adopted? There is no simple answer.  Although there are similarities between the plans there are also many differences. Each plan also has deficiencies that must be addressed in the final legislation. In addition, the final legislation will likely be a combination of elements of each of the proposals. Regardless, when the dust settles, America’s immigration policy will be changed dramatically this year.

Ryan A. Hintzen

Attorney

The Hintzen Law Firm, PLLC