The American Immigration Lawyers Association ("AILA") explains what is happening as S.744 is debated on the Senate Floor:
Process (Starting the Week of June 10th)
Senate Majority Leader, Harry Reid (D-NV), filed cloture on the motion to proceed on 6/6/13
The Senate will debate the motion to proceed for two calendar days and will conclude with a cloture vote on 6/11/13 at 2:15pm and a final vote at 4:00pm. If cloture is
invoked (requires 60 yes votes—which should not be a problem as Minority Leader McConnell (KY) has indicated he will vote yes), and the motion to proceed passes then the Senate will begin debate of the bill.
The Congressional Budget Office (CBO) will release a score for the bill—estimating how much the bill will cost the government (add or reduce the deficit) over the next ten years.
Debate will begin with opening statements from both parties and then time will be divided evenly between Democrats and Republicans
o Sen. Leahy (D-VT), Chairman of the Judiciary Committee, will work with Sen. Reid and the four Democratic members of the “Gang of Eight” to lead the Democratic efforts for the bill.
o For Republicans, the time will be divided between proponents (the four Republican members of the “Gang of Eight” and others) and opponents (Senators Sessions (AL), Grassley (IA), and others).
Amendments (offered over the next three weeks) see attached filed as of 6/11/2013 http://www.immigrationbn.com/Portals/52046/docs/amend.pdf
We anticipate that hundreds of amendments will be filed to S. 744; however, just because an amendment is filed does not mean it will be called up for a vote—in fact most won’t (similar to what happened in the committee process).
Time will be allotted to debate the amendments. Many (typically non-controversial) amendments will be accepted on a bipartisan basis. We expect that the most controversial amendments will be held off until the third week of debate (June 24th), right before the cloture vote on the bill.
Some amendments may require a higher 60 vote threshold, while others will only need a simple majority.
Senators may offer amendments in any order to any part of the bill that has not already been amended. The order in which amendments are offered depends largely on the convenience of the Senators proposing them, not on requirements imposed by standing rules or precedents.
Senators can offer 2nd degree amendments to any amendment being debated on the bill. After voting on any second degree amendments, the Senate votes on the first degree amendment as it may have been amended. Third degree amendments—amendments to second degree amendments—are not in order.
Final Votes on Bill as Amended (Most Likely Week of June 24th)
Filibuster: Because Senate rules establish no generally applicable limits on the length of debate, nor any motions by which a majority could vote to bring a debate to an end, or even limit it, the only formal procedure that Senate rules provide for breaking filibusters (endless amendments being offered, one senator speaking at length, etc…) is to invoke cloture.
When Senator Reid has decided that the time for offering amendments has expired, he will invoke cloture to end debate on the bill. If any Senator objects to cloture it will then require 60 yes votes to end debate and move to a final vote. If cloture is invoked successfully (60 yes votes) there will still be an additional 30 hours (or two calendar days) of debate when amendments can continue to be offered.
If cloture is invoked, and after the bill has ripened (the 30 hours have elapsed), the Senate will then move to a final vote on the bill as amended. This vote only requires a simple majority of the Senate for passage.
Ellen H. Badger writes: "Living Undocumented explores the lives of diverse undocumented immigrant youth to illustrate the realities, challenges and opportunities they face through high school, college, and beyond. It is directed by Tatyana Kleyn (City College of New YorkSchool of Education) and produced by Ben Donnellon. It features 6 DREAMers, who portray the realities of our nation’s immigration system and its impact on undocumented youth. The documentary is intended for all audiences, but with the accompanying lesson plan and resource guide for students and educators, it is especially useful in high school classes. The director, who is a professor at CCNY in New York City, has given full permission for its distribution. She has created a website at this link: http://www.livingundocumented.com/ The film can be accessed at the web site. The direct link to the film, which is YouTube, is http://www.youtube.com/watch?v=DjBkrqJ9BEc."
Call Your Senators and urge them to support S744 for Immigration Reform
Advocates for comprehensive immigration reform won their first major legislative victory this week when the Senate Judiciary Committee voted 13-5 to approve the bipartisan "Gang of Eight" plan.
It is the first step in a series of hurdles for immigration reform that includes increased border security, a pathway to citizenship for 11 million undocumented immigrants and reforms to legal immigration designed to streamline the process.
It took the 18 senators five days for markups and they considered 300 amendments, with many of those that passed doing so in a bipartisan nature. Overall, 48 Republican amendments passed primarily strengthening immigration enforcement. There were few, if any, significant changes made to the original "Gang of Eight" bill.
So What Does the Bill Include?
Path To Citizenship
The estimated 11 million people living in the U.S. illegally could obtain “registered provisional immigrant status” six months after enactment of the bill as long as:
(1) The Homeland Security Department has developed border security and fencing plans.
(2) They arrived in the U.S. prior to Dec. 31, 2011, and maintained continuous physical presence since then.
(3) They do not have a felony conviction or three or more misdemeanors.
(4) They pay a $500 fine.
—People in provisional legal status could work and travel in the U.S. but would not be eligible for federal benefits.
—The provisional legal status lasts six years and is renewable for another $500.
—People deported for noncriminal reasons can apply to re-enter in provisional status if they have a spouse or child who is a U.S. citizen or permanent resident, or if they had been brought to the U.S. as a child.
—After 10 years in provisional status, immigrants can seek a green card and lawful permanent resident status if they are current on their taxes and pay a $1,000 fine, have maintained continuous physical presence in the U.S., meet work requirements and learn English. Also the border triggers must have been met, and all people waiting to immigrate through the legal system as of the date of enactment of the legislation must have been dealt with.
—People brought to the country as youths would be able to get green cards in five years, and citizenship immediately thereafter.
Within 180 days of enactment, The Department of Homeland Security is required to submit a “Comprehensive Southern Border Security Strategy” including enhanced border security and fencing plans. This is significant because any undocumented aliens eligible for Registered Provisional Immigrant Status (“RPI) will not be eligible to apply for a Green card until Border Security is effective and operational.
Changes to the Family based Immigration (“Green Cards”)
- Backlog for Family and Employment-based immigrants will be eliminated over a 10 year period
- Sponsorship of Siblings of US Citizens is eliminated.
- Sponsorship of Married adult children are only allowed if a child is under 31 years of age.
- Spouse/child of Permanent Residents will be treated like a spouse/child of US. Citizens so no wait times and no annual numerical limits
Changes to Employment-Based Immigration (“Green Cards”)
- Backlog for Employment-based immigrants will be eliminated over a 10 year period
- No annual numerical limits and no wait times on Employment-based Derivative Beneficiaries, Aliens with Extraordinary Ability, Outstanding Professors and Researchers, Multinational Executives and Researchers, Doctoral Degree Holders in Any Field and Certain Physicians
- 40% to Advanced Degree Professionals (Arts Sciences, Professions, Business) and Master’s Degree in STEM with Offer of Employment
- 40% to Skilled Workers and Professionals•
- 10% to Special Immigrants•
- 10% to Job Creators
- Annual limitation on the number of employment-based immigrant visas but allocation changes:
- The cap on the H-1B visa program for high-skilled workers would be immediately raised from 65,000 a year to 110,000 a year, with 25,000 more set aside for people with advanced degrees in science, technology, engineering or math from a U.S. school. The cap could go as high as 180,000 a year depending on demand.
- New protections would crack down on companies that use H-1B visas to train workers in the U.S. only to ship them back overseas.
- 60 day Job Transition Period
- H-4 Work Authorization—(If sending country has a reciprocal law for US Citizens)
- Additional H1B Fees-50 or More Employees and more than 30%/ but less than 50% are H-1/L-1--$5000 per additional worker
- 50 or More Employees and more than 50% are H-1/L-1--$10,000 per additional worker. If more than 75% Employees H-1/L-1—No more sponsorship
- A startup visa would be made available to foreign entrepreneurs seeking to come to the U.S. to start a company. Although not clearly defined, the Senate Bill creates an employment-based conditional immigrant visa for a sponsored alien entrepreneur:(1) with certain amounts of financial backing from a qualified investor, government entity, or venture capitalist; and(2) whose commercial activities will generate required levels of employment, revenue, or capital investment.
- A new merit visa, capped at 250,000 a year, would award points to prospective immigrants based on their education, employment, length of residence in the U.S. and other considerations. Those with the most points would earn the visas. This visa would be effective 5 years after enactment. It is similar to the Canadian Landed Immigrant Visa System.
- The bill would eliminate the government’s Diversity Visa Lottery Program, which randomly awards 55,000 visas to immigrants from countries with historically low rates of immigration to the United
- A new W visa (No Bachelor’s degree) would allow up to 200,000 low-skilled workers a year into the country for jobs in construction, long-term care, hospitality and other industries. The visa would be valid for 3 years and can be renewed for three years.
Employers will need to register with a new Bureau
- Spouse and Children can receive work authorization
- Cannot be Unemployed for over 60 days•
- 30 Day Recruitment Requirement• Cap—20,000 First Year Increasing Up to 75,000 in subsequent years
A new agriculture worker visa program would be established to replace the existing program. Agriculture workers already here illegally, who’ve worked in the industry at least two years, could qualify in another five years for green cards if they stay in the industry.
- Spouse and Children(Work Authorization)• Cannot be Unemployed for over 60 days• 30 Day Recruitment Requirement• Cap—20,000 First Year Increasing Up to 75,000 in subsequent years
Within four years, all employers must implement E-Verify, a program to electronically verify their workers’ legal status. As part of that, noncitizens would be required to show photo ID that must match with a photo in the E-Verify system. An amendment by Senator Grassley failed that would have enforced the system within 18 months of the bill's passage, instead of the four years outlined in originally. The system is going to have to add in 5 million employers. Right now it can handle only about 180,000
One major addition to the original bill is the biometric entry/exit provision which requires all non-U.S. citizens to be fingerprinted when leaving the U.S. through the country's 10 busiest airports.
Late in the day, the bill survived perhaps its most serious challenge when the Democratic committee chairman Leahy introduced and then withdrew an amendment that would have granted gay and lesbian couples the same rights as straight married couples to sponsor their foreign-born partners for immigration.
Democrats who supported the notion said they could not vote for the amendment because it would have fractured the fragile, bi-partisan coalition that wrote the delicate legislation. Republicans said they would walk away if the amendment was included, resulting in Leahy vowing to fight the battle another day.
So What Happens Now?
"Now the real work begins to see if we can reform this bill before we send it to the House," Sen. Chuck Grassley, R-Iowa, said during closing remarks. The Bill goes to the Senate for debate and vote.
If the bill is passed by Senate, the bill will then go to the House of Representatives. The House can vote on the Senate bill or its own legislation.
The separate House "Gang of Eight" said last week it had agreed in principle on its own bill and expected to write its legislation and introduce it after the Memorial Day recess. The House can vote on its own immigration legislation. If it does, then the House and Senate must work together to reconcile the bills. If that does not happen, both bills die.
If both the House and the Senate approve the same bill, then the bill is sent to the President to sign. After the President signs the bill into law, then the Department of Homeland Security has to figure out how to enforce it—but that is a whole different topic.
WASHINGTON, DC - The Senate Judiciary Committee wrapped up weeks of work on immigration reform by passing S. 744 the "Border Security, Economic Opportunity, and Immigration Modernization Act" out of committee by a bipartisan vote of 13 to 5 last night. At the end of the hearing, Senate Judiciary Committee Chairman Leahy said, "The dysfunction in our current immigration system affects all of us and it is long past time for reform. I hope that our history, our values, and our decency can inspire us finally to take action," as he successfully concluded an unprecedented effort to open the immigration reform process to the public by making all amendments available online.
"At the outset of this process, the Senate Judiciary Committee faced 300 amendments filed by Senators, only some of which would have improved our immigration system. For the most part, Senators stood firm against a number of detrimental proposals that, if accepted, would have yanked our immigration system backward," said American Immigration Lawyers Association (AILA) President, Laura Lichter. She continued, "We applaud wholeheartedly the efforts of the four "Gang of Eight" members on the committee who helped ensure the core principles of the reform bill were essentially maintained."
As attention turns to the Senate floor where Senate Majority Leader Harry Reid (D-NV) has vowed to bring up the bill quickly, AILA remains committed to supporting amendments that would ensure all families can reunite with their loved ones, including the siblings of U.S. citizens and LGBT/same-sex families, as well as protect businesses and workers and maintain our country's commitment to the ideals of equal rights and due process.
"This next week, during Memorial Day recess, the American people need to make sure their voices are heard by calling on their Senators to support a balanced bill on the Senate floor and withstand the efforts of obstructionists who would offer destructive amendments that only serve to undermine this carefully wrought bipartisan framework. We need the Senate to pass immigration reform that will meet our country's economic needs and reflects our nation's values," concluded Ms. Lichter.
Watch this short video in which AILA Executive Director Crystal Williams discusses the impact of the Committee's action. View the amendments here. docs/Amendment.pdf
Yesterday, the bipartisan group of senators known as the "Gang of Eight" introduced S. 744, the "Border Security, Economic Opportunity, and Immigration Modernization Act." Earlier today, AILA issued this press release commending the Senators for their work on the bill. Below are eight initial points of interest pulled from the bill's provisions. Just to barely scratch the surface, here are but a few things S.744 would do:
- Legalization: Allow noncitizens who are unlawfully present and who entered the U.S. before December 31, 2011 to adjust status to that of Registered Provisional Immigrant (RPI). Eligible applicants would be required to pay a penalty and back taxes. Individuals in RPI status would receive work authorization and may travel abroad. They would also become eligible to apply for LPR status after 10 years, and can apply for naturalization 3 years after acquiring a green card. Includes generous provisions for DREAMers and agricultural workers.
- Family-Based Immigrants: Move the current FB-2A category into the immediate relative classification, allow for derivatives of immediate relatives, eliminate the FB-4 category, cap the age of eligibility of married sons and daughters of U.S. citizens at 31, and bring back the V visa.
- Employment-Based Immigrants: Exempt the following categories from the quota: EB-1 immigrants, doctoral degree holders, physicians who have completed the foreign residency requirement, and derivatives. Add a new "EB-6" category for certain entrepreneurs.
- Temporary Workers: Create a W-1 visa for lesser-skilled workers, a W-2 visa for aliens coming to the U.S. temporarily to perform agricultural services or labor under a written contract, and a W-3 visa for "at-will" workers with an offer of full-time employment in an agricultural occupation. The W-2 and W-3 visas would replace the current H-2A agricultural worker program.
- Asylum: Eliminate the one-year filing deadline and authorize asylum officers to grant asylum during credible fear interviews.
- E-Verify: Require all employers to be on the system after 5 years.
- H-1Bs: Increase the quota to a floor of 110,000 and a ceiling of 180,000, increase the U.S. advanced degree exemption to 25,000 but limit it to STEM graduates, add a recruitment requirement for all H-1B labor condition applications involving a detailed posting on an Internet site designed by the Labor Department, add a non-displacement attestation, change the prevailing wage formula, provide EADs for spouses, and add a 60-day grace period after an H-1B has been terminated from his or her job.
- Fraud: Make it a crime to knowingly defraud an immigrant or hold oneself out as an attorney or BIA accredited representative when one is not authorized to do so. Require the identification of individuals who assist immigrants with the completion of forms and empower the Attorney General with injunctive authority to act against an unscrupulous "immigration service provider" at the federal level.
As a framework for reform, this is closer than we've come in years to meaningful change," said AILA President Laura Lichter
We commends the Senate "Gang of Eight" for introducing its bipartisan immigration reform proposal, allowing the Senate Judiciary Committee to forge ahead on the "markup" process. A proposal like this is a necessary first step in any path forward to create a common-sense immigration system that will meet the needs of the U.S. economy, businesses, and families, and integrate into our society aspiring Americans who work hard and want only a better life for themselves and their families.
In many ways, the language contained in the 844 page legislation reflects key issues AILA sees as necessary to any successful immigration reform, such as border and interior enforcement, legalization, backlog reduction, asylum, family unification, and both current and future business needs.
"Is it perfect? No compromise measure ever is. Is it a good bill? Yes, for the most part it is, and perhaps it is even a great bill in some respects. We do see some further changes that are desirable, and as we delve more deeply into the details, I'm sure we'll find some needed tweaks. But as a framework for reform, this is closer than we've come in years to meaningful change," said AILA President Laura Lichter. She continued, "This bill does not shy away from addressing the difficult issues embedded in current immigration policy. It's a good start, and I hope that by continuing to work across the aisle, the Senate can pass a bill that will meet our nation's needs and the House will follow suit."
The United States Citizenship and Immigration Services (USCIS) has announced that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year (FY) 2014, including more than 20,000 H-1B petitions filed on behalf of persons exempt under the advanced degree exemption. USCIS is no longer accepting H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.
USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit.
For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing. The agency conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit.
H-1B petitioners and beneficiaries now anxiously await news of whether or not their filings are granted one of the precious H-1B spots.
As a reminder, the 15-day premium processing period is not set to begin for cap-subject H-1B petitions until Monday, April 15, 2013. For more information on premium processing for FY 2014 cap-subject petitions, please see the related USCIS Alert.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap are not counted towards the H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:
Extend the amount of time a current H-1B worker may remain in the U.S.; change the terms of employment for current H-1B workers; allow current H-1B workers to change employers; and allow current H-1B workers to work concurrently in a second H-1B position.
Of course, USCIS will continue to accept "cap-exempt" petitions. These are petitions from a non-profit institution of higher education, a non-profit affiliated with an institution of higher education and a non-profit research institution. In addition, petitions for J-1 physicians who have obtained a waiver pursuant to the state 30 or federal programs are "cap exempt," as are beneficiaries of employment offers at institutions of higher education.
For more information regarding the information in this Alert, or if you require assistance with your company’s immigration or employment issues, including IRCA compliance, I-9s, audits, visa processing or comprehensive immigration strategy, please contact me.
Employment Based Immigration: Can Our Immigration Policy Foster Business?
Immigration attorney Karen Lee Pollak will speak as a panelist at the Texas Wesleyan Immigration Initiative and State Bar of Texas Immigration & Nationality Law Section Panel. The event will be held at the Texas Wesleyan School of Law- Fort Worth on Monday March 25, 2013 at 12:00 PM- 1:15 PM
The panel will discuss current United States employment-based immigration; possible solutions to related issues; and potential changes in employment-based immigration policy. The event will focus on the impact of immigration policy in the American economy. Practicing attorneys will be encouraged to share their perspectives about the economic impact of the current United States immigration system.
Karen-Lee Pollak, Bell Nunnally & Martin LLP
Jason Mills, Law Office of Jason Mills
Dustin J. O’Quinn, Gardere Wynne & Sewell, LLP
The Obama administration spent more money on immigration enforcement in the last fiscal year than all other federal law enforcement agencies combined, according to a report issued by the Migration Policy Institute (MPI), a nonpartisan group focused on global immigration issues.
According to this report, in the 2012 fiscal year, the government spent about $18 billion on immigration enforcement programs run by U.S. Immigration and Customs Enforcement, the U.S.-Visit program, and U.S. Customs and Border Protection, which includes the U.S. Border Patrol.
Immigration enforcement topped the combined budgets of the FBI; Bureau of Alcohol, Tobacco, Firearms and Explosives; Drug Enforcement Administration and U.S. Secret Service by more than $3 billion dollars.
The 182-page report offers a detailed analysis of the current immigration enforcement system that was set in motion with passing of the Immigration Reform and Control Act (IRCA) in 1986. The report traces the evolution of the system, particularly in the post-9/11 era, in terms of budgets, personnel, enforcement actions and technology.
It examines individual programs and results, ranging from Secure Communities and 287(g) to deportations, detention, post-9/11 visa screening and new federal databases, explaining how they have intersected — in some ways by deliberate design, in others by happenstance — to create a complex, interconnected, cross-agency system.
This report concludes that the Obama administration has made immigration its highest law enforcement priority. "Today, immigration enforcement can be seen as the federal government's highest criminal law enforcement priority, judged on the basis of budget allocations, enforcement actions and case volumes," MPI Senior Fellow Doris Meissner, a co-author of the report, said in a statement released with the report.
The report challenges a long-standing contention by immigration restrictionists that the U.S. needs more border security before it can consider immigration reform. Unprecedented manpower, infrastructure and technology deployed for border security efforts has led to a drop in apprehensions at the Southwest border to a level not seen since the 1970s. The plunge in apprehension is widely viewed as an indication that fewer immigrants are crossing illegally into the U.S.
In fact, net migration from Mexico has dropped to zero and may be going in reverse, meaning that more Mexican immigrants may be leaving the U.S. than are entering it. While enforcement plays a role in that decline, the migration numbers have also been affected by a sluggish U.S. economy, a growing Mexican middle class and shrinking fertility rates among Mexican women.
Yet according to the MPI report, the U.S. Department of Homeland Security deported nearly 410,000 people from the United States in 2012 and the U.S. Immigration and Customs Enforcement (ICE) increased their worksite enforcement raids on paperwork audits, targeting employers who hire undocumented workers rather than targeting undocumented workers themselves.
This tough stance on immigration enforcement seems to contradict renewed interest in immigration reform from Congress and the White House. In the immediate aftermath of the November election, Congressional Republicans suggested that the time was right to begin reform talks anew, and President Barack Obama has promised to make immigration reform a priority in his second term.
In the lead up to the election, the president made several administrative changes to the immigration system, including the launch of the Deferred Action for Childhood Arrivals (DACA) program to allow some young undocumented immigrants to avoid deportation and work legally in the country for up to two years.
Also, earlier this month, the administration announced a change in process that will allow some undocumented immigrant spouses, parents and children of U.S. citizens to remain in the United States while they ask the government to waive three- or 10-year bans on returning to the United States because they have accrued unlawful presence.
Immigrants who win the waiver will still need to leave the country to complete visa paperwork but will be able to leave without fear of being barred from returning to their families for up to a decade. This rule goes into effect on March 4, 2013, and it is hoped that it will reduce the time certain immediate relatives have to be separated from U.S. citizen family members.
While the president acknowledges the need for effective border security, he also realizes that Congress’ failure to fix the broken immigration system has led to record and wasteful government spending on immigration enforcement. Generally, immigration laws have not changed in more than two decades and have come at an unjustifiably high cost to the American taxpayer.
Billions of dollars could be saved if government agencies better used the resources they’ve already been allocating, eliminated wasteful or duplicative programs and refocused our enforcement priorities on real threats rather than on people who have become an integral part of our workforce.
President Obama has promised to get immigration reform done in 2013. Let’s hope so.
--By Karen-Lee Pollak, Bell Nunnally & Martin LLP
Karen-Lee Pollak is a partner at Bell Nunnally & Martin, where she chairs the immigration practice group.
Originally published on Law360, Jan. 31, 2013. Posted with permission.