Is Immigration Reform Meeting Election-Time Expectations? So Far, So Good: LXBN Roundtable

By | LXBN | February 12, 2013

In the weeks before election day, the Des Moines Register published a surprisingly frank interview with President Barack Obama.  Its release, delayed initially at the request of the Obama campaign, painted the picture of a confident President already planning how to address campaign promises.  As the Obama administration transitions from campaigning to governing, one such promise—comprehensive immigration reform—is becoming a reality.

But just how close is that reality to the expectations of reform supporters after a surprisingly comfortable Obama victory?  A victory that many pundits, both on the left and right, contribute to the changing demographics of the electorate.  Or, as Seyfarth Shaw immigration attorney Angelo Paparelli likes to say, the “caramelizing of the American electorate.”

It was that “caramelizing” and strong campaign rhetoric that led Paparelli to write a piece, urging President Obama to “be bold” in his efforts to change our nation’s immigration laws.  Shortly after writing that post, Paparelli returned from a trip to the Beltway, convinced that comprehensive immigration reform was closer to passing in the House and Senate:

“The two days of strategizing with out-of-towners and engaging with Beltway insiders convinced me that [comprehensive reform] — whether in a grand bargain or in a series of coordinated, interlocking votes on pieces of connected legislation — enjoys its best prospects for near-term passage in several years.

….

As Utah AG Mark Shurtleff told the audience at the National Strategy Session, now is a “kairos moment” for immigration reform, or as Wikipedia would say, “a moment of indeterminate time in which something special happens.”  Kairos, he noted, also carries a religious significance in that kairos time should be treated as a providential call to action.”

However, the definitions of a successful framework for immigration reform vary from person to person, legislator to legislator.  In the same post, Paparelli paraphrased a conversation with a “newish” GOP legislator, describing the path he believed the Republican party would support:

“We would support small-government immigration solutions, family values, entrepreneurship, innovation, and power sharing on immigration between the federal and state governments.”

After the election was over, Greenberg Traurig attorney Nataliya Binshteyn reported on President Obama’s post-election news conference where he addressed what shape immigration reform would take:

“In his first news conference since winning re-election, President Obama signaled that a comprehensive immigration reform bill will likely be introduced early next year and will address key issues such as border security, enforcement of laws prohibiting the employment of undocumented workers, and the fate of the estimated 11 million people who currently reside in the United States without legal status.”

Binshteyn, like Paparelli, also saw a path to citizenship for the so-called DREAMers.  Legislation of that ilk focuses on the positive contributions immigrants make to America, as opposed to the problems associated with immigration.

In that same vein, Catherine Wadhwani of Fox Rothschild looked to jobs as the driving factor in any immigration reform in her post written just 6 days after the election.  Here are a few of her bullet points on what she saw coming:

“* There may be changes that encourage rather than discourage foreign-born entrepreneurs who start businesses that create jobs.

….

* There may be a relationship between the annual number of temporary worker visas (H visas) available and the legitimate need of business and industry for foreign-born talent.

* There may be a required, accurate system of employment verification based on E-verify to detect undocumented workers and protect employers from sanctions.   “

While comprehensive immigration reform has supporters in the legal and political communities, there are some concerns. Douglas Kauffman laid out just a few questions on the Alabama Immigration Law Journal; questions that seemingly multiply for employers should there be any major changes to our immigration laws:

“I cannot help myself from wondering what may be on the horizon for employers and worksite enforcement if comprehensive immigration reform occurs. For example:

  • Will all employers be required to use E-Verify? (In Alabama, that already is the law, but my guess is that there still is mass non-compliance and federal law and federal enforcement would change things quite a bit)
  • Will there be a new and improved electronic verification system?
  • Will increased enforcement and higher penalties apply only to employers who knowingly hire unauthorized workers, or will the employers who just make paperwork mistakes on I-9s also be impacted?”

For all the speculation and concern, the only way to know how immigration reform will look is to watch the bills emerge from committee meetings, floor debates, and bi-partisan negotiation sessions.  A few of those steps have already been taken, as competing immigration reform plans have been drafted by both the White House and the Senate.  The House has also entered into the foray with a number of bills that will be a part of a immigration reform plan.

So how do they stack up against expectations?

Starting first with the Senate plan, the proposed framework for the legislation will rely on the four guiding principles.  From Littler Mendelson‘s Michelle Valerio on the firm’s Washington D.C. Employment Law Update:

  • Providing a path to citizenship for unauthorized individuals currently residing in the United States, contingent upon improving border security and combating visa overstays.
  • Reforming the immigration system to improve the U.S. economy and strengthen American families.
  • Creating a mandatory electronic employment verification system – this system would differ from E-Verify, which is mandatory only for federal contractors and in some states.
  • Improving the process for issuing nonimmigrant work visas (i.e., H-1B, L-1, etc.).

While a series of four bills in the House, designed to address pressing immigration issues, “will be considered” as a part of immigration reform created by the second chamber.  With more on one of these bills, the STEM Jobs Act, here’s Littler Mendelson’s Scott Decker on the Global Mobility & Immigration Counsel:

 ”The “STEM Jobs Act” (H.R. 459) would eliminate the diversity visa lottery program and would transfer the 55,000 immigrant visas from that program for use by foreign students that have received advanced degrees in science, technology, engineering and mathematics (STEM).”

The other bills look to solve a variety of issues, including visa problems that children of deceased service members may have, the creation of mandatory minimum sentences of illegal immigrants that reenter the United States after being removed for committing crimes, and the last bill, which would make the E-Verify program permanent and mandatory.

Finally, the administration’s proposal.  The White House focused on four major themes, all of which were mentioned during the presidential campaign.  The themes – border security, employment enforcement, earned citizenship, legal immigration – like the Senate proposal, will be expanded upon in the coming weeks, but here’s a quick look at a breakdown of the path to earned citizenship as outlined in President Obama’s plan for immigration reform, provided by Jackson Lewis attorney, Jessica Feinstein:

Earned Citizenship: The 11 million or so undocumented immigrants must be brought “out of the shadows” and put on a pathway to contributing to the economy and our nation, according to the President.  The individuals who qualify as DREAMers and certain agricultural workers would have an expedited path under his proposal.  All other qualified individuals would have to follow a procedure requiring background checks, English proficiency, and payment of fees and penalties.  Additionally, the backlogs for legal immigration must be eliminated before any of these individuals can begin the process to legalization.”

While the proposals above are only building blocks for what will be lengthy bills should any version reach President Obama’s desk, they provide insight into the beginning negotiating positions of all parties as the legislative process moves forward.  One key difference between this iteration of reform proposals and the 2009 attempts to change immigration laws are the prevalence of four-point plans.  The Senate and White House both introduced frameworks focusing on four key points, and the House introduced four bills as a way to enter the discussion.  As Robert Whitehill said on Fox Rothschild’s Immigration View, there’s a new chip in this round of immigration reform:

“The difference between the 2009 3-legged stool and the 2013 4 key principles is “cracking down on employers hiring undocumented workers”.  Employers should expect that there will be a gradual phase-in of mandatory use of E-Verify and more attention by DHS, USCIS, DOL and other federal agencies on  employers.  That is one take away.  Employers should make sure that their HR house is in order, with correct I-9s, hiring policies and practices and a workforce of documented workers.”

But all this analysis brings us back to the big question.  Comprehensive immigration reform was a key player in an election filled with flowery rhetoric and promises, but are those promises – and the expectations of constituents and proponents of immigration reform – matching up with the realities?  Like Robert Cohen put it on the Employer Law Report, it’s a good start, but the devil is in the details:

“These two statements provide a hopeful sign that the intractable problems have been reconsidered in light of the new political reality and good old-fashioned compromises have been defined. There are still many difficult decisions ahead. The devil, as they say, is in the details, and it is those details beyond the basic positional statements that will be necessary to define.”

Cohen goes on to discuss what exactly he thinks those details are – mainly family reunification – but it’s the last paragraph of his post that I think sums up the feelings held by most of the immigration lawyers on LXBN:

“If the last 23 years have taught us anything, Congress and the whims of sound-bite politicians is not the proper forum to determine these specific decisions going forward—it must be the federal government policy makers taking their cues from market forces. The law should determine future flows based upon objective economic data and market demand. The ultimate number of immigrants, and the process of determining of which immigrants we need to welcome, must enhance our economic growth, reflect our national values and build upon our history and recognition that America is a strong nation—because we are, and continue to be, a nation of immigrants.”

Photo credit:  Anuska Sampedro