Given the recession and the fierce ongoing healthcare debate in Congress, the subject of comprehensive immigration reform (CIR) has taken a back seat in Washington.  However, President Obama has recently given an indication that immigration reform remains a priority for him.   On March 11 the President met first with immigration activists and later with New York Democratic Senator Chuck Schumer and South Carolina Republican Senator Lindsey Graham, who are drafting an immigration reform bill.   The President later stated, as reported in The Wall Street Journal, "I told both the senators and the community leaders that my commitment to comprehensive immigration reform is unwavering, and that I will continue to be their partner in this important effort."  As one commentator puts it in The Washington Post, Congress is waiting to see what the President does, even as he says he needs to see some Republican willingness to enact reform.  On March 18 President Obama issued a statement praising the proposed legislation of Senators Schumer and Graham, and renewing his pledge to seek a bipartisan consensus this year to move ahead on CIR. 

In the U.S. it is Congress that makes laws, not the President, and it remains to be seen what will happen.  Without Congressional action there will be no CIR.  So what sort of immigration reform is Congress considering?  Are there any indications of reform this year? 

Elements of Comprehensive Immigration Reform

While different immigrants’ rights advocates seek different aspects of reform, the most prominent and representative national group is the American Immigration Lawyers Association (AILA).  AILA’s position on CIR, if adopted by Congress, will benefit Zhang & Associates clients as well as other immigrants nationwide whatever their status.  AILA supports comprehensive reform that includes:  1) requiring undocumented immigrants to emerge from the shadows and be able to earn legal status;  2) allowing U.S.  businesses to hire the employees they need while also protecting U.S. workers from unfair competition;  3) reducing the backlogs in both family-based and employment-based immigration; and   4) protecting national security and the rule of law while also preserving and restoring the constitutional rights of due process and equal protection.

However, AILA’s position statement capturing the major issues at stake is a very broad platform and any CIR bill that may be passed, whether soon or in the future, will not appeal to all sides, and may be much more limited than what AILA aims for.   The legislation proposed by Senators Schumer and Graham, which President Obama has indicated he supports, has four main elements, as outlined in a Washington Post op-ed co-authored by the Senators:  “Our plan has four pillars: requiring biometric Social Security cards to ensure that illegal workers cannot get jobs; fulfilling and strengthening our commitments on border security and interior enforcement; creating a process for admitting temporary workers; and implementing a tough but fair path to legalization for those already here.”   

The Political Climate is Extremely Challenging for President Obama and Congress to Push for Reform

In August last year, President Obama expressed his desire to push for immigration reform.  He gave a general indication of his opinion on what such reform should involve, stating, as reported in The New York Times, “[U]ltimately, I think the American people want fairness.  And we can create a system in which you have strong border security and an orderly process for people to come in.  But we’re also giving an opportunity for those who are already in the United States to be able to achieve a pathway to citizenship so they don’t have to live in the shadows.”

However, whatever the President’s aspirations, both houses of Congress have to pass a bill before the President can sign it into law.   CIR needs bipartisan support, which may not be forthcoming anytime soon.  As a New York Times editorial states, “The fate of immigration reform, then, hangs on its ability to win Republican votes.”  Immigration reform has in the past appealed to Republicans as well as Democrats; after all, among other reasons, both parties are fighting for Latino votes, and Republicans have been sympathetic to arguments from business about the need for more leeway in hiring temporary foreign workers.  The Times explains that just two years ago, negotiations over a major immigration reform bill included several Republican senators such as John McCain, Mel Martinez, Sam Brownback, Jon Kyl, and Lindsey Graham.  Currently though, the list of prominent Republican senators pushing for immigration reform is far more limited. 

Whatever their private views, politicians of both parties know that with midterm elections for all 435 House seats and 36 out of 100 Senate seats coming up this November, any signs they give about being soft on enforcement against undocumented aliens may be used against them and could cost them in the polls.  Likewise, given the recession and the higher than usual rate of unemployment within the U.S., Congress may not be amenable at this time to an increase in skills-based immigration or a loosening of existing regulations.      
Immigration Advocates are Pressing President Obama for Action on CIR

Nevertheless, there is a lot of pressure on President Obama from immigrants’ rights advocates.  During Obama’s first year as President, as reported in The Washington Post, Immigrations and Customs Enforcement (ICE) increased the number of deportations to an all-time high: 298,401 in fiscal 2009, a 13 percent increase over the previous fiscal year.   The effect this has had on families coupled with the lack of immigration reform so far has upset a significant segment of the population that supported Obama.  As The Wall Street Journal reports, in the 2008 Presidential election, 2 million more Latinos voted than in the 2004 election, and according to CNN exit polls nationwide 67 percent of the Latino vote went to Obama.  Having not yet been able to deliver on CIR, Obama faces protests from immigrants’ rights leaders who have called for a march on Washington on March 21 that some predict will have 100,000 participants.  Congressman Luis Gutierrez from Chicago states, as reported in The Washington Post, that this march "is primarily directed at President Obama and his administration."

Despite these protests, it appears that CIR is unlikely to occur this year unless the pressure on Obama from immigrants’ rights advocates is met by a strong positive response by him combined with Congressional action, whether internally driven or brought about by pressure from the President and voters.   As to what form CIR will take if and when it is passed, there are a variety of competing bills and more are likely to follow including the proposal by Senators Schumer and Graham.    

Regardless of CIR, Undocumented Immigrants Will Not Jump the Line:  Filing ASAP Preserves Priority Date

If and when CIR passes and includes legalization provisions for undocumented immigrants, it is extremely unlikely that undocumented aliens will receive any advantage over those who are in legal status and qualify under current immigration categories.  While it is unclear to what extent the current per-country quota system may be changed under CIR, those who are qualified for employment-based immigrant visas (eg. EB-1, EB-2, and EB-3) should still try to use all available channels.  For those with long visa retrogression, filing ASAP will secure their priority date.  This is the bottom line in the current system, and will continue to be the case even with the passage of CIR.  USCIS has maintained a very good pace for I-140 petitions recently (including EB-1, EB-2, and EB-3) and most cases are adjudicated within 4 months, enabling those who file now to get a fast decision.    

Zhang & Associates, P.C. attorneys will continue to follow developments in Congress and will be traveling to Washington, DC next week, joining efforts to lobby Congress to pass comprehensive immigration reform.