This week has seen a flurry of activity in connection with the push for comprehensive immigration reform (CIR). A bipartisan group of eight Senators proposed a broad framework for CIR legislation. A separate bipartisan group of four Senators subsequently introduced legislation with many beneficial pro-business immigration reforms. President Obama added to the momentum by giving a major address promoting CIR.

Bipartisan Senate Framework

On Monday, January 28, 2013, a bipartisan group of eight Senators introduced a comprehensive framework to address all aspects of immigration reform. The framework will be translated into specific legislation, perhaps by March. Key elements of the bipartisan Senate framework include:

  • Persons in the United States without authorization will be allowed to apply for temporary legal status. They will undergo background checks and be required to pay a fine and back taxes. They will be allowed to apply for permanent residency (green cards) only after border security and visitor entry/exit controls are improved. Applicants would go to the back of the line behind all other persons presently waiting for green cards.
  • Special provisions for children brought to the U.S. and agricultural workers would allow them to proceed to permanent residency without waiting for the border security and entry/exit improvements.
  • The legal immigration system would be improved to attract the best and brightest to come to the U.S. to benefit the U.S. economy. A new green card category would be created for persons with science, technology, engineering and math (STEM) advanced degrees from U.S. universities. The green card backlogs in the family-based and employment-based categories would be reduced.
  • A mandatory employment verification system (similar to E-Verify) would be established to ensure that employers hire only persons authorized to work in the U.S.
  • Employers would be able to employ foreign nationals in lower-skill positions if there are not sufficient U.S. workers available. Special provisions would facilitate hiring agricultural workers.

A bipartisan group in the House of Representatives is also working on a CIR package which may contain elements similar to the Senate plan.

Immigration Innovation Act

On Tuesday, January 29, 2013, a bipartisan group of four Senators introduced the Immigration Innovation Act of 2013 (IIA). IIA focuses on employment-based immigration reforms that would be very favorable to U.S. businesses wishing to employ foreign talent. The IIA may not move as a stand-alone bill, but may serve as a basis for discussion for the employment-based portions of a broader CIR bill. Key elements of the IIA include:

  • The annual H-1B specialty worker visa cap would be lifted from 65,000 to 115,000.
  • Persons with U.S. advanced degrees would not be subject to the H-1B cap. Under current law, this group gets a specific allocation of 20,000 visa spots.
  • The H-1B cap would be flexible, going up or down based on market demand, with a ceiling of 300,000 H-1B visas per year.
  • Spouses of H-1B workers in H-4 status would be authorized to work.
  • Provisions would facilitate the movement of foreign workers between employers.
  • Persons in work visa status would again be able to apply inside the U.S. for work visas allowing them to travel internationally. Presently, all applicants must apply at U.S. consulates abroad.
  • The number of employment-based green cards would be increased.
  • Favored groups would be exempt from the annual limits on employment-based green cards: STEM advanced degree holders from U.S. universities, persons of extraordinary ability and outstanding professors and researchers.
  • The per country green card limit, which causes persons born in China and India to wait longer for green cards, would be eliminated.
  • H-1B visa and green card filing fees would be increased, with the funds going to improve STEM education in U.S. schools.

President Obama's Position

Also on Tuesday, January 29, 2013, President Obama gave a speech in Las Vegas addressing CIR. The President said the time is right to address this difficult issue which has been lingering for years. President Obama supports a comprehensive legislative approach to address all aspects of immigration reform. His approach is based on these principles:

  • Strengthen border security.
  • Crack down on employers who employ undocumented workers.
  • Create a path to earned citizenship for persons in the U.S. illegally. These individuals would have to undergo background checks and pay a penalty and back taxes.
  • Streamline the legal immigration system, including facilitating visas for STEM students and entrepreneurs and reducing the family-based green card backlogs.

The President's proposals overlap the bipartisan Senate framework, and the President generally supports the Senate effort. However, there are some differences between the President and the Senate framework. The most significant difference is that the President would not make persons going through the legalization process wait to apply for green cards until the border is secure and the entry/exit system is improved. He would allow them to have a more direct and faster track to permanent residency and citizenship. Additionally, the President did not expressly call for a new visa program to allow U.S. employers to hire foreign nationals for lower-skill positions.

President Obama does not intend to propose specific legislation at this time. He will let the Senate take the lead. However, he warned that he would act to introduce his own bill if he saw that Congress was not acting quickly. Both the President and the House expect the Senate to take the lead on CIR legislation.

Prospects for CIR

Prior efforts to pass CIR legislation during the past decade have failed, largely because of Republican opposition to legalization for persons who entered the U.S. illegally. But since the November 2012 elections, there appears to be a softening of opposition to legalization among many Republicans. Many analysts believe 2013 could be the year when CIR finally happens. This legislation would have a significant impact on U.S. employers in several areas. First, all employers would be subject to the enhanced employment verification system to make sure they are employing lawful workers. Second, employers would have better access to high-skilled and low-skilled foreign workers to meet their human capital needs. Senate legislation could be introduced by March, and it is possible legislation could be enacted by the summer.

Upcoming Immigration Seminar

Immigration reform legislation will be a lead topic at Faegre Baker Daniels' annual "Passport to Success" Immigration and Global Mobility seminar in Minneapolis on May 7, 2013. Amy M. Nice, the U.S. Chamber of Commerce Executive Director for Immigration Policy, will be the keynote speaker for the conference. The U.S. Chamber of Commerce has been a strong advocate for pro-business immigration reform.