Comprehensive Immigration Reform: What the Election May Mean for Employment-based Immigration

While hopes are high that some form of immigration reform will come about starting sometime with policy debates early next year, it should be kept in mind that so far focus on improving the current laws and regulations pertaining to legal immigration has been overshadowed by the discussion of what to do with undocumented aliens currently living in the United States. Not much more than lip-service has been given to the problems of immigrant visa backlogs and the need to attract more high-skilled and technologically capable immigrants. The current political atmosphere may be the best opportunity in 20 years to reformat immigration laws, but there are plenty of reasons to believe that old political disputes will limit the extent that an expansion to visa numbers or a change to employment-based immigration will occur.

With President Obama’s recent re-election and the role that minority voters played in that election, much political and media attention has been focused on the possibility of Comprehensive Immigration Reform (CIR). Prior to the election President Obama claimed that not dealing with immigration reform was what he considered to be the greatest failure of his first term as President. The political landscape for the upcoming Congress (in which the Democrats control the Senate and have improved their minority in the House of Representatives) combined with President Obama’s desire for immigration reform and Republicans’ recent support of such reform means that for the first time in over 20 years substantial changes to immigration law may be possible. However, beyond calls to legalize the millions of undocumented aliens currently in the United States, there has not been consensus on what changes to legal immigration will be acceptable.

By looking at some previously rejected immigration legislation and current political leaders’ views on legal immigration it becomes obvious that a truly comprehensive and all encompassing change to the immigration policy of the United States is unlikely. While not impossible, any political law making action in congress will likely not go beyond border security and legalization of undocumented workers without ending in Congressional gridlock or denial.

Previous Immigration Bills

STEM Visas Bill

Democrats have spoken of “expanding” employment-based visa categories while Republicans have spoken plenty about STEM visas, but not about expansion. The importance of this difference is crucial. While Republicans such as Marco Rubio have expressed the need to change the employment-based immigration system to better react to a changing economy, he –and others like him– has not expressed interest in “expanding” employment visas.

The STEM issue may be indicative of the challenges that any bi-partisan CIR will face. In September of 2012, mere months before the November election which spurred discussion of CIR, a STEM bill was introduced to the House of Representatives by Republican Lamar Smith of Texas. The bill would have created a new visa category for graduates of US universities holding a STEM degree. The visa numbers for such a new category would be 55,000 per year. On the face of it, and in light of Republicans and Democrats agreeing on the need for such visas, it would appear to have been passable. Yet there was, and continues to be, a profound difference in opinion about where any new high-skilled visas should come from.

Republicans proposed that 55,000 new visas come at the expense of the Diversity Visa Program which offers visas to qualified applicants from countries with low rates of immigration through a lottery. In addition, this bill stated that any unused visas from the STEM category would not be transferable to other categories. In the best case scenario there would be no change to the number of immigrants admitted to the United States (a new visa program was created at the expense of another). But, in a situation where fewer than 55,000 STEM graduates applied and were given visas in a year, the number of immigrants would actually drop since these unused visas could not be used to reduce the backlogs of other categories.

In the aftermath of the election it is important to keep the recent STEM debate in mind. Both sides are calling for CIR; but wanting the same goal and agreeing on how to achieve it are very different things. While it is possible that the situation next year may be different, even as recently as September 2012 politicians could not agree on how to make STEM visas available, even though the need for STEM visas is almost universally agreed upon by both parties.

Comprehensive Immigration Reform Bill in 2007

Going further back, to the Senate immigration bill introduced by Democrat Senator Harry Reid of Nevada, we can see many of the problems that as yet remain unresolved for CIR. The Comprehensive Immigration Reform Act of 2007 would have massively altered the way immigration takes place in the United States, and was the last major piece of CIR immigration debated in Congress. Despite, as today, widespread and bipartisan support for immigration reform, this bill could not pass the senate.

Most notably, the bill proposed to eradicate the employment-based immigration system as we know it. Rather than having distinct employment-based categories, this bill would have created a points system to be used by the USCIS in determining alien admissibility. Points would be given to applicants based on education, skills, experience, family-ties to the United States, and English-language proficiency. Labor certification and a job offer would not be required for any immigrants under the proposed “points system”. However, if an alien did have a job offer it would show nicely on their application and count for extra points. The higher the points, the more desirable and thus more likely to be admitted an alien would become.

This bill proposed to get rid of much of the family reunification aspects of the current immigration system. US citizens would only be able to sponsor immediate family members (spouses and children) for green cards. Any extended family members of US citizens would have to become permanent residents on their own through the merit-based points system, or be the immediate relative of a US citizen. This issue caused disagreement between Democrats and Republicans, who each had different views over what the rule of family-based immigration should be in immigration reform. Since the Presidency of Lyndon B. Johnson, Democrats have been supporters of family-based immigration while Republicans have tended to focus more on the merits of employment-based immigration. Early versions of the bill included an expansion of the number of H-1B visas given per year. But since this was a compromise bill, the 2007 proposal included no such expansion of this nonimmigrant visa type.

Some Important Political Immigration Thinkers

Senator Marco Rubio (R-FL):

Sen. Rubio has expressed the most support for changes to the legal system of immigration so far or anyone from the Republican Party. Rubio, whom many in his party look to as a leader in immigration policy, has stated that without substantial changes to the number and type of immigrants admitted to the United States each year to fill highly-skilled employment positions, the United States will find itself continually needing to address the issues of visa backlogs and illegal immigration. Rubio has stated that the current number of aliens being admitted as permanent residents falls far short of the national need for the talents that they can bring. Such rhetoric suggests that Rubio, while not expressing specifics yet, would be supportive of an overhaul to the visa allocation system in order to reduce backlogs and increase the number of highly-skilled immigrants arriving in the United States.

Senators Chuck Schumer (D-NY) and Lindsey Graham (R-SC)

Showing the current bipartisan support for CIR, Senators Schumer and Graham have revived previous immigration ideas to address the nation’s current situation. Focusing on the need to secure the border and how to fairly give legal status to current undocumented workers in the US, these Senators’ plan does not put legal immigration reform front and center. Both Schumer and Graham admit that some sort of change to how aliens legally immigrate to the United States will have to occur, but neither has currently hinted at what such change would look like. At the moment, addressing the issue of current undocumented aliens and how to prevent future undocumented aliens from coming to the US is the main focus of the Senators’ plan. The basis for the Senators’ new proposal is a similar plan they put forward in 2010. While addressing the need for a new employment-based category for aliens who earn an advanced STEM degree from a US university, the plan was largely about immigration enforcement. And, as has already been mentioned, mutual support for STEM visas is not the same as agreement on how those visas should be created.

Senator John McCain (R-AZ)

Senator McCain was the sponsor of two CIR bills (one in 2005 and the Comprehensive Immigration Reform Act of 2007) with the late Senator Ted Kennedy (D-MA deceased). McCain and Kennedy were among the biggest proponents for the merit-based points system for immigration. The 2007 CIR act would have gotten rid of employer-sponsored immigration and replaced it with a merit-based system where immigration applicants were to be judged on education, skills, work experience, English language proficiency and family ties to the United States. McCain, who is in support of renewed CIR discussions in Congress, has said that any new legislation would likely be based on the merit-based points system of the 2007 act. The divisiveness of the points system in the past does not bode well for such merit-based changes to legal immigration.

Representative Michael Honda (D-CA)

Representatives from the Democratic Party, such as Michael Honda from California, emphasize the need to address both the employment-based and family-based backlogs of the current immigration system. Historically in the recent debate over immigration reform, Democrats (such as the late Senator Ted Kennedy from Massachusetts and current Senator Robert Menendez from New Jersey) have seen family-reunification as a key element in any immigration legislation. However, since the beginning of new immigration discussions may be based on the failed 2007 “Comprehensive Immigration Reform Act” the fate of family-based immigration will likely be a point of contention between Democrats and Republicans.

Senator Jerry Moran (R-KS)

Sen. Moran has proposed increasing STEM and entrepreneur visas. Under Moran’s proposal, each year there would be 50,000 immigrants visas available to advanced STEM degree holders graduating from US universities and 75,000 immigrant visas available to H-1B holders or advanced STEM degree graduates who created their own start-up company. Both the STEM specific and start-up visas would be on a conditional basis until all of the specifics of the program were met. For example, the 50,000 STEM visas would require an alien to remain employed in a STEM degree-specific job for 5 years and the start-up visa would require an alien to create employment for 5 US workers and invest a minimum of $100,000. While gaining support amongst various Congress-people, this proposal does not say whether these 125,000 visas will be created or reallocated from existing employment-based preference categories. Moran’s plan would also remove per-country visa limitations for employment-based immigration.

President Barack Obama

President Obama has made the DREAM Act Bill and Deferred Action for Childhood Arrivals (DACA) centerpieces of his immigration platform. This act would provide a path to citizenship for undocumented aliens who have graduated from an American high school and attended college or joined the armed forces of the United States. DACA is the executive decision to give temporary relief from removal proceedings for undocumented aliens who arrived in the United States as children, and thus violating immigration laws through no fault of their own. While the benefits of these two policy decision are great, they are not concerned primarily with retooling the current immigration system. President Obama, like most other politicians, has expressed a desire to fix immigration problems so that future generations will not be confronted with the same problems of undocumented workers. With this in mind he is very similar to most other politicians in not having a defined and approvable plan for what such an immigration system would look like. President Obama has stated that CIR could be accomplished quickly since Congress will have previous legislation, such as the Comprehensive Immigration Reform Act of 2007, to jumpstart the conversation. Unfortunately, the Presidents optimism seems to ignore the fact that the 2007 bill, while one of the better immigration proposals in recent memory, was a bipartisan failure.


While apparently both political parties in the United States agree that CIR should take place soon, neither has yet agreed on what such reform would look like. As far as CIR goes, the one issue that both Democrats and Republicans seem most likely to find common ground on is the need to legalize many of the undocumented workers currently living and working in the United States. On the broader issue of how to reform legal immigration, both parties (and even members of the same party) are in disagreement.

Some sort of immigration deal will likely be reached with the start of the next Congress in January of next year. However, all signs at the moment point to legalization of undocumented workers as being the most pressing issue for such legislation. Any overhaul of the legal immigration system will take much longer than the speedy timeline which both Democrats and Republicans are now hoping for. We will keep a close eye on all immigration related developments in the coming debate. In the mean time it is best to be realistic about the chances for a sudden change to the legal immigration process and to continue seeking visas based on the qualifications of current employment-based categories.

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