The Basic Layout of Comprehensive Immigration Reform
For the first time in nearly 30 years the political and social landscape in the United States is conducive to far reaching immigration reform. While the legal path forward for Comprehensive Immigration Reform (CIR) will be a long one, President Obama has voiced his support for CIR legislation to be completed this year. At this early in the processes, however, it is certain that immigration reform is broadly wanted but what exactly the reform will look like and when it will be put in place is less certain. With Democrats and Republicans in both houses of Congress, as well as non-governmental political forces such as the Chamber of Commerce and unions agreeing on the need for immigration reform to take place during the upcoming year, the chances of substantial changes to US immigration law are very high. Exactly what those changes will look like, however, is still not certain.
So far the plans put forward by various US Representatives and Senators have focused on 4 major issues to be dealt with in CIR: 1) Legal Status for Illegal Immigrants in the US; 2) Border Security; 3) H-1B overhaul; 4) STEM degree-based permanent residency. However, despite the fact that there is broad consensus that something needs to be done in each of these areas to correct the immigration system in this country, there has not yet developed a consensus on what, exactly, is the most appropriate way to fix legal immigration and deal with the number of undocumented workers currently in the US.
A big part of CIR (perhaps the most political and widely known aspect) is dealing with the nearly 11 million undocumented aliens currently living in the United States and legally integrating them into the American nation. Like other parts of potential CIR, the exact method for addressing the undocumented workers presently in the country is not agreed upon yet. Legalization of these immigrants can be divided into one plan offering a path to citizenship and another which offers legal status, but with no direct opportunity to achieve citizenship. When speaking of offering a path to citizenship for illegal aliens, law makers have been adamant that these aliens will not be able to “jump the line” and gain immigration benefits before those who have started the process legally. This essentially means that, if a pathway to citizenship is offered in an eventual CIR law, undocumented immigrants currently residing in the United States would be allowed to stay in the US legally but would not automatically receive permanent resident status. These undocumented immigrants would receive a priority date like all other legal applicants and would only receive a green card after waiting their turn.
Democrats and Republicans have not yet agreed on how the legalization of these aliens will take place: Democrats want to offer legal status until obtaining permanent residency which could then lead to citizenship; Republicans mostly want to focus on a legal status that is not the same as permanent residency, thus making it impossible to eventually become a citizen unless the alien applies for a green card through another route. This issue could be the one that holds up comprehensive reform for the longest time. One bi-partisan plan in the Senate is for illegal aliens to receive a temporary legal status to stay in the country while paying back taxes, learning English (if necessary), and completing a background check. After these steps are taking the illegal aliens would be able to receive a green card and subsequently citizenship. This is important to keep in mind because, as both political parties agree, reform will not entail giving benefits to undocumented immigrants that give them more favorable treatment than other foreign nationals who have and continue to take the proper and legal steps necessary to come to the United States.
In addition to fixing the legal system of immigration there has been a big call to enforce border security. These calls, mainly coming from the Republicans, argue that any change to the legal system of immigration will have to be accompanied by ensuring that fewer and fewer new illegal aliens are capable of entering the United States without inspection. Many Republicans are demanding that only after certain border security benchmarks are met will undocumented workers be able to gain legal status (as of yet these benchmarks have not been elaborated upon). However, thanks to already increased border security and enforcement efforts, the growth of the undocumented population in the United States has slowed to almost a halt.
Increased Border Control -which has already been a hallmark of President Obama’s first term- in tandem with alterations to immigration laws are aimed at insuring that there will not be a need for comprehensive immigration reform again in another 20 years. All current discussion of immigration law is focused on the “future flow” of immigration to this country and how the United States can accurately accommodate the immigration demands of generations to come.
Many of the proposals for reform put out thus far have focused on the need to expand the H-1B visa category to accommodate the labor demand of high tech industries in the United States. Most of these plans, however, have been individual proposals which aim to fix specific elements of the legal immigration system without overhauling it entirely. The best example of current thinking as is related to H-1B visas currently is a proposed bill sponsored by Senator Orrin Hatch of Utah. Under Sen. Hatch’s proposal annual H-1B visa numbers would be increased by 50,000 (for a total of 115,000) and would then either increase or decrease depending on the demand for this type of visa. Sen. Hatch’s plan would not allow annual H-1B visa numbers to drop below 115,000 nor rise above 300,000.
The likelihood that individual H-1B legislation will pass during the current political climate is not great. But such calls for increased and dynamic H-1B visa availability shows that this is an important part of the economic considerations in drafting new immigration laws. If not exactly similar to Senator Hatch’s H-1B plan, it is likely that any CIR legislation will contain substantial changes to H-1B availability to address the demand for high tech employees in American businesses.
The potential for expanded H-1B visas at some point in the future should not affect the decisions of foreign nationals looking to obtain temporary employment currently. As the CIR process moves slowly and has many obstacles to clear before even being considered as a bill, it is not advisable to wait on future developments to make decisions for immigration plans today.
Both Republicans and Democrats are in favor of the “staple a green card to an advanced Science, Technology, Engineering, and Math (STEM) degree” approach to immigration reform. Despite the failure in the Senate of a STEM degree act last year caused by inability to agree on where the visa numbers for a new STEM category would come from, both political parties are now closer to agreement that visa numbers should be created to accommodate STEM applicants. The previous legislative battle involving STEM visas was whether an entire visa category should be eliminated in order to free up visa numbers for advanced degree STEM graduates from US institutions of higher education. The inability of the two political parties to agree on this signaled that the time was not right for a separate STEM bill.
While not every Democrat or Republican now agrees, it is becoming much more likely that any STEM visa numbers proposed will be created and will not rely on using visa numbers previously allotted to other categories or programs. In this way, US high tech businesses will be able to have the permanent resident labor necessary to maintain growth, the US economy will be more competitive globally, and no other types of immigrants will be excluded in order to make room for these new STEM visas.
Similar to the H-1B situation discussed above, aliens with advanced STEM degrees from US institutions should consider the fact that the specifics and time frame from of a STEM act have not yet been fully elaborated. As such, aliens who qualify for permanent residency now should not necessarily wait for STEM visas to become available before petitioning for a green card. We previously wrote an article about the STEM visa. If you would like to learn more details about that issue, you may read that article about The Potential for Advanced STEM Degree Visas.
The biggest political push so far has been for comprehensive, one size fits all reform; but there are some lawmakers who would rather correct the system of legal immigration by changing substantive parts of the legal code one at a time. For example, even while one group of Senators puts forward general guidelines for comprehensive reform, other politicians such as Senator Orrin Hatch of Utah and Representative Lamar Smith of Texas have offered drafts of legislation that would change legal immigration a little bit at a time.
Currently the President and his party have urged that comprehensive reform is necessary and to avoid piecemeal changes to the immigration laws of the US without addressing all of the problems. Even politicians who author overarching immigration reforms (such as Senator Marco Rubio of Florida) have also come out in endorsing smaller and more specific plans to address issues such as H-1B and STEM visas. So, at the moment it is possible to see that even if a massive CIR bill fails there is still the potential for other changes afterward.
With the strong focus and media attention being given to the issue of giving legal status to the nearly 11 million undocumented immigrants currently in the United States, it is important to remember that CIR is about much more than just this. Similarly, it is worth noting that CIR proposals as they stand now do not offer to undocumented immigrants any privileges that are more than those offered to legal immigrants. Fixing the problems that have led to such a large undocumented population in the United States is just one aspect of CIR.
Beyond the ideas behind what immigration reform will look like there are two related things to take away from the current state of affairs of immigration reform: 1) it is politically attractive and more realistic than ever before in recent memory that CIR can be passed, but 2) the desire for legislative reform does not yet mean consensus on what will be reformed or when reform will take place. While it is exciting to see so much discussion of immigration reform in Washington, we are still very early in the process and very little concrete has been released or proposed relating to CIR.
With arguments over how much border security is enough, whether to offer a path to citizenship to undocumented workers, and when and how additional H-1B and STEM visas will be added, there is still a long way to go before any of these benefits will be available. While it is tempting to wait for the perfect law to be passed before applying for a visa, it may not be advisable to wait on future developments with no certainty of success. If a foreign national is eligible to receive immigration benefits under the current laws, it is recommended that he/she contact an experienced immigration attorney as soon as convenient regardless of the possibility of changes to immigration law in the future.
Founded in 1996, Zhang & Attorneys, L.P. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Attorneys, L.P., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past seventeen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (email@example.com) for a free evaluation.
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