Thursday, January 31, 2013

Brief Analysis of the Bipartisan Framework for Comprehensive Immigration Reform


A Brief Analysis of the Bipartisan Framework for Comprehensive Immigration Reform


A bipartisan group of eight Senators have issued a document referred to as the “Bipartisan Framework for Comprehensive Immigration Reform.”  It purports to set out principals for developing a compressive immigration reform package.  This is very significant in that it is bipartisan, and involves key players in the past on the immigration issue, including Senators Schumer, McCain, Durbin, Graham, and Menendez.  It is significant also in that it is a comprehensive proposal rather than the piece meal proposals that have been debated over the past few years.  The last time Congress considered a comprehensive immigration reform package was in the 2007-2008 congressional term, which was rejected, even though supported by President Bush.  In some ways this is a better outline than we had in 2007 from an immigrant standpoint and I think that partly reflects the reality of the last election.


If you recall, there was a strong component in the GOP that took a very strict anti-immigrant position.  It opposed the Dream Act, any amnesty or path to legalization, and took a basically deportation first and enforce the borders policy.  Minorities, who are becoming a larger voting block significantly, rejected this approach in the presidential election (the GOP got only 21% of the Latino votes and less than that of the Asian American vote). 


In my opinion, Governor Romney made a serious strategic mistake in enlisting for advice people like Kris Kobach.  The positions taken by the GOP did much damage to perceptions of that political party and its attitude toward immigrants.  It is unfortunate because historically that was not necessarily the case.  I am glad to see Republican Senators like John McCain, Lindsey Graham and Marco Rubio weighing in on immigration reform.  At least McCain and Graham have been supportive of some of the previous attempts at immigration reform. 


It is also evident now that the President largely agrees with the principals laid out in the bipartisan framework, so let’s see what those are.


There are four basic legislative pillars. 


1.  Create a path to citizenship for unauthorized immigrants contingent upon securing the border and combating visa overstays.


Securing the Border.  The key words here are “contingent upon” and “securing the border.”  The path to citizenship is going to wait until there is confidence that the border has been secured.  What this means will differ greatly in the minds of many people.  Not long ago Secretary Napolitano indicated that she thought the border was the most secure it had been ever in the U.S. history, which threw cries of outrage from officials in Arizona.  Others point out that the benchmarks indicated in the 2007 legislation for securing the borders have already been met.  There are legitimate concerns that in some peoples’ minds the border will never be secured and thus the path to citizenship will never be implemented.


It all depends on how we define “securing the border.”  The Framework indicates a committee or commission comprised of governors, attorneys general and community leaders living along the southwest border to monitor the progress of securing the border. 


I am a bit apprehensive of this since I am confident that Governor Jan Brewer of Arizona will never agree that the border is secure as long as one person without authorization crosses it.  This is, of course, an impossible standard to fulfill.  That would be like saying that Kansas City will not be a safe place to work and raise a family until we can show that there is absolutely no crime in the city. 


I think what also bothers me about the way this is stated is that it almost implies that there is nothing being done right now to secure the border.  That is absolutely not the case.  Congress spends more money securing our border than it has in its history.  We deported more people (most of whom were non-criminal) last year than we ever have in our history and tens of thousands of those people were non-criminal parents of U.S. citizens.  Since the creation of the Department of Homeland Security in 2003, the budget for Customs and Border Patrol (CBP) has nearly doubled from $6 billion in fiscal year 2003 to $11.7 billion for fiscal year 2012. 


Nevertheless the Framework proposes to increase efforts of the border patrol with a focus more on technology such as drones rather than boots on the ground.  The Framework also proposes completion of an entry/exit system that can determine whether all persons entering the U.S. on temporary visas at airports and seaports have left the country as required by law. 


Probationary Legal Status.  The Framework also indicates that while the security measures are being put into place, they will require those who have come and remained in the U.S. without permission to register with the government.  This would involve a background check, paying a fine, and back taxes in order to earn “probationary legal status.”  The probationary legal status will allow them to live and work legally in the U.S. (similar, I think, to what we have with the beneficiaries of the “deferred action for childhood arrivals program”).  People with serious criminal backgrounds or who pose a threat to national security will be ineligible for legal status and subject to deportation. 


So although the probationary status can be attained before there is a determination that the border is secure, immigrants will not be eligible for a green card until that has taken place. 


Lawful probation immigrants will not be eligible for federal public benefits.  To get the green card, they will have to “go to the back of the line of prospective immigrants, pass an additional background check, pay taxes, learn English and civics, demonstrate a history of work in the U.S. and current employment, among other requirements……..”   


This is a fairly high standard, even higher than what we expect of persons naturalizing in the U.S.  If an immigrant cannot show current employment, will they not be eligible?  What about the elderly or disabled? 


The “back of the line.”  Moreover, “go to the back of the line” is a very fuzzy concept.  I am not sure what line they are referring to.  There are certainly mass backlogs in visa number availability, but unless those numbers are increased by Congress the wait could be decades.


And what line do they stand in?  There is no line for persons who entered the U.S. without inspection and don’t have qualifying petitioning relatives.  The framework says that persons present without lawful status “will only receive a green card after every individual who is already waiting in line for a green card at the time the legislations has acted and received their green card.”


Well, if you are the brother or sister of a U.S. Citizen and you are from Mexico, the USCIS Ombudsman recently estimated that the wait for the visa number to be available is 131 years.  Does this mean that probationary immigrants have to wait until all of those visas have been processed?  If so, then I would not call this a “path to citizenship” unless we are willing to award citizenship posthumously. 


Regarding children, the Framework does indicate that people that entered the U.S. as children will not have the same requirements.  This is recognizing the principals of the Dream Act.  The Framework also intends to apply a lesser standard to people who have been working in the agricultural industry, which reflects some of the principals of the “Ag Jobs Act.”  Neither the Dream Act or Ag Jobs ever passed Congress. 


2.  Attracting the World’s Best and Brightest. 


Although the U.S. remains a magnet for the world’s most talented people, our immigration system has done a lot to discourage those people from coming in recent years.  The Framework recognizes the long backlogs and wants to do something about that although it is not clear what.  One significant statement is that they want to “award a green card to immigrants who have received a Ph.D., or Masters’ Degree in Science, Technology, Engineering, or Math from an American university” (the “STEM” fields).  This was something similar to what Governor Romney said in one of his campaign speeches. 


That kind of provision would be a tremendous benefit to U.S. employers who have trouble finding enough of the particular kind of talent they need and to professionals waiting for discouragingly long periods to complete the green card process (current estimates for certain professionals from India may be 15-35 years).  Many of our clients that have already have been waiting years and years in line to get green cards that are in the STEM fields could benefit greatly from such a proposition, although we have no details on how it might work.  For example, would they have to show a job offer or just the diploma etc.? 


3.  Strong Employment Verification.  The Framework will require a “fast and reliable” method for employers to confirm employment eligibility for their workers.  This sounds reasonable, but so far this kind of program, such as e-verify, has been a burden for employers and rife with errors.  Nevertheless, we can expect something like this to be required eventually.


4.  Hire lower skilled workers in a timely manner when Americans are unavailable or unwilling to fill those jobs. 


This would be significant because at the moment there is virtually no system for an employer legally to bring in a lower skilled worker for a permanent position.  That is primarily because of the backlogs.  An employer can go through the process of testing the U.S. labor market and demonstrating that there are no qualified and available U.S. workers for the position, and then still have to wait ten years or more to bring that worker in.  That is not a workable system. 


The Framework does indicate that they want a system that will allow more lower skilled immigrants to come here when the economy is creating jobs and fewer when the economy is not creating jobs.  This may sound appropriate, but sometimes the infusion of additional workers in a stagnant economy will provide a stimulus to the economy and actually create more jobs.  I am not sure the economic principal stated in the Framework actually holds up. 


The Framework also indicates that they want to “permit workers who have succeeded in the work place and contributed to their communities over many years to earn green cards.”  That is a good principal, but I am not sure how it would work.  Will this be different than the probationary legalization? 


Conclusion.  Of course, as in all things dealing with immigration, the devil will be in the details, but I see this as a very promising start to immigration reform.  Consider that only a couple of years ago Congress could not even pass the Dream Act which is supported by a large percentage of the American public.  It is quite astonishing and exciting then that we have gone from that low to the kind of principals espoused in this Framework in such a short period of time.  What a difference an election can make.