Last week news outlets across the United States reported the release of draft legislation outlining the Obama administration’s plans for immigration reform. This unofficial memo is merely a draft, but its release (whether intentional or otherwise) has caused some concerns in the realm of immigration reform. The White House has said that if bi-partisan negotiations for immigration reform breakdown in Congress that the President’s office would put forward its own legislation for a vote. This draft is the first insight into what exactly such executive legislation proposal would look like and no mention is made of improving the legal immigration system. In many ways what is missing from the draft is just as important as what is included.

Overview of Current Reform Status

For political reasons the Obama administration has largely left the role of actually drafting immigration legislation to the Congress –specifically the bi-partisan group of eight Senator’s known as the “Gang of 8”. One of the most prominent members of this group, Senator Marco Rubio (R-FL) has voiced his opposition to the White House draft legislation as it stands now, mostly due to the lack of any mention of overhauling the legal immigration system in the United States. Others, especially Republican members of the House of Representatives, feel that the release of the memo was intentional and directed at gaining executive control over reform proceedings. Still others see the release of the draft legislation as a way to ensure that true comprehensive immigration reform (CIR) fails, thus putting the blame of failure on Republicans who would not endorse the President’s plan and ensuring that CIR will remain a campaign issue for years to come. Whatever the reason for the release of the memo, it is an insight into the contested issues of reform and additionally shows what the Obama administration may prioritize in a CIR deal.

Politics and partisanship aside, it is striking that the only piece of immigration legislation so far connected to the White House makes no mention of plans to improve the system of legal immigration to this country. President Obama himself has said that they best way to fix immigration in the United States is to pass on large bill that touches on all immigration problems now faced. This is in opposition to calls for “piece-meal” reform -such as last year’s STEM Act- that would fix individual problems and require separate legislation for each one. So, while President Obama has stated his desire for one large comprehensive bill, the immigration memo from last week does not touch on any of the necessary reforms to legal immigration that have been cited as imperative to future economic and demographic growth.

Brief Analysis of the Draft

The draft addresses three main aspects of comprehensive immigration reform: Border Security and Enforcement; Legalization and Potential Naturalization; and Workplace Verification of Employees. While these are three very important aspects of any comprehensive immigration reform (CIR) proposal, they are not enough to truly fix the immigration system in this country according to many legislators and activists.

Examples of border security and enforcement provisions of the draft include: expanding technologies used for border patrol (sec. 101); increasing customs fees (sec. 105); creating a form of expedited removal for visa overstays (sec. 118); eliminating mandatory detention for asylum seekers (sec. 121); narrowing the definition of “aggravated felony” (sec. 122); increasing visa waiver program requirements (sec. 128); increasing the penalty for cash smuggling (sec. 141); and expanding the number of immigration judges and court personnel (sec. 155).

The draft also outlines the process through which the Obama administration would like to see legal status given to undocumented immigrants currently residing in the United States. The draft creates a Legal Prospective Immigrant (LPI) status that eligible aliens would receive while waiting for permanent resident status (sec. 201). LPI status would allow, among other things, the aliens to obtain work authorization and to petition for their children and spouses to come to the United States in LPI status as well. Some of the requirements to obtain LPI status would be learning English and US History/Civics and paying back taxes. LPI status would be valid for an initial 4 years and would be eligible for extension if the alien continued to be eligible for LPI status. To become a permanent resident, aliens granted LPI status would have to have been granted LPI status 6 years prior (for aliens who are considered DREAM Act eligible, the wait would only be 2 years). Notably in this draft, undocumented aliens adjusting status to legal permanent residents would not be counted against available visa numbers (sec. 205). After adjusting status, normal rules for naturalization would apply and former holders of LPI status would be able to become citizens, if otherwise eligible.

The final section of the draft essentially deals with the implementation of the E-Verify employment verification system (sec. 301), outlining the action to be taken against employers who unlawfully hire undocumented workers (sec. 301), and creating and requiring the use of more fraud-resistant biometric identity and social security cards (sec. 303). This section does not relate to legal immigration and is focused solely on how to ensure that only authorized workers are employed in the United States and to protect American workers from potential loss of employment due to undocumented laborers.

What this Could Mean for CIR

Clearly the above examples extracted from the Obama administration’s draft legislation are important to the broad success of CIR, but very few of them are relevant to the PhD professionals, the US advanced STEM degree graduates, the workers with specialized knowledge, the skilled laborers, or any other foreign national currently waiting to enter the United States legally. The lack of any mention of overhauling the legal immigration system is what makes the release of this draft so perplexing. It could be that the Obama administration understands that changing the legal system to allow in more high-skilled and highly needed laborers is so much an agreed upon step in CIR that it is not necessary to highlight exactly how the President foresees this happening. Or, it could be that the draft legislation is putting priority on fixing illegal immigration to the detriment of legal reform. Without addressing the future flow of legal immigrants to arrive for generations to come Senator Rubio has called this proposal “dead upon arrival” if it ever actually made it to Congress for a vote. That being said, it is still important to keep an eye on what each party and each section of government prioritizes in the push for comprehensive immigration reform.

Conclusion

As members of the immigration law community we are excited about the potential for CIR and have kept an eye on developments of this Congress. Many potential immigrants have seen the situation as is developing legally and wondered if it would be better to wait for CIR to pass before starting the immigration process. However, as the contents of the White House draft and the fallout of its release show, CIR is not a guaranteed success and even what will receive priority is not yet fully agreed upon. This may sound pessimistic, but in most situations the time lost waiting on a potential immigration reform law would be better spent beginning the process as early as possible under the current legal situation. If an alien is eligible for immigration benefits he/she should not wait on immigration reform that may never come before pursuing their future life in the United States.

While we are hopeful that improvements to legislation relating to employment-based immigration will take place, there is always room for caution and being practical, especially with such a big life step as coming to the United States to work. We know that the current system, for whatever improvements it could benefit from, is the law of the land and will lead to immigration benefits. Speculating on future immigration benefits (such as STEM visas or expanded employment-based visa numbers) is tempting in political times like these, but nothing is certain in Washington DC before legislation is actually passed. The opportunity costs involved in delaying the petition process for a green card are too great in many circumstances to justify not applying as soon as possible with a system that has been proven to work.

Sources:

Marco Rubio Press Release – 2/16/2013
White House Press Briefing – 2/19/2013

For more information on Comprehensive Immigration Reform, please click on one of the following topics below:

• Overview of Gang of Eight’s “Border Security, Economic Opportunity, and Immigration Modernization Act of 2013”
• AILA South Chapter Conference Comprehensive Immigration Reform Discussion
• CBP Begins Automation of I-94 Process
• W Visa for lesser-skilled workers not working in agriculture
• Details of the Proposed Merit-based Visa System under the Border Security, Economic Opportunity, and Immigration Modernization Act
• Increased Scrutiny and Concern as the EB-5 Program Becomes More Popular
• Details of White House Reform Proposals Emerge
• The Basic Layout of Comprehensive Immigration Reform
• The Potential for Advanced STEM Degree Visas
• Comprehensive Immigration Reform: What the Election May Mean for Employment-based Immigration
• Upcoming House Vote on the STEM Act