Prospects for Immigration Reform

As anyone who has been closely following the news in the last couple of weeks knows, immigration reform is front and center on the national stage. Many people have reached out to me to ask me what I think about it and/or the chances of enactment. For the record, the vast majority of my clients are legal immigrants who are processing their petitions through employment/investment and family petitions. These are some of the questions they are asking:

  • I am from a country facing many years of wait time to obtain my permanent residence [China, India, Mexico, The Philippines], how much faster will my petition be processed if the plans I have read about are adopted?
  • I graduated with a U.S. Master’s/Doctorate and I have already started my permanent residence process, what happens if the proposal to “staple a green card to the diploma of a U.S.
    Master’s/Doctorate” is adopted?
  • When will these proposals take effect?

Those questions and some other question from clients prompted me to write this to explain why my short answer would be that I don’t know exactly how anyone would be affected nor do I know whether any of the proposals are actually going to be adopted. I wish to give my clients a glimpse about what we are really talking about and why it is so complicated.

The first thing that I wish to convey to anybody who happens to read this is that we are discussing proposals.Some of the proposals are very specific and some are a lot more general.However, until we have a bill that is passed by both houses of Congress and signed by the President, all that we have is a dialogue.A national dialogue on the issue is good, but please do not hand over your hard-earned money to anybody who promises any immigration benefits based upon what you are reading about or watching in the news right now.

There is very little question that we have an immigration system that is broken.By some estimates, we have some 11 million people who are illegally in the U.S.   For those who are trying to get to the U.S. legally, or those who are already legally here, we have a system that results in extremely long processing times.    Some of the proposals that are being discussed include the following:

  • A pathway to citizenship for those illegally in the U.S. or at least some sort of status to allow them to legally live in the U.S.;
  • Streamlined immigration;
  • Greater border security;
  • Making it easier to remain in the U.S. for those who obtain U.S. Master’s and Doctorates in the Sciences, Engineering, Technology and Mathematics;
  • Doing a better job at matching the supply and demand of immigrant and non-immigrant visas;
  • Doing a better job of penalizing employers who utilize illegal laborers;
  • Ensuring better labor protections.

The fact is that the immigration issue is multifaceted and it can be viewed through many different lenses, including but not limited to, economics, culture, morality and our country’s self-image as a welcoming nation of immigrants, the proverbial melting-pot. My intent here is not discussing the state of immigration through those aforementioned lenses, but simply to view the issues in cold practical terms. In practical terms, we have two separate issues, issues that affect legal immigrants and issues that affect illegal immigrants.   

Unfortunately, the immigration issue is such a charged political topic, that for the past decade or more, it has been impossible to address the issues facing legal immigrants and the illegal immigrants separately. To be sure, we have had laws passed to deal with some non-immigrant issues for legal immigrants, but those efforts have been very marginal efforts. Some legislators and constituents believe that a framework can exist in which the issues of legal immigrants and illegal immigrants can be separated and dealt with on their own merits, while other legislators and constituents believe in an all- -or-nothing approach we commonly refer to as “Comprehensive Immigration Reform (“CIR”).Those who believe in CIR will not deal with the issues facing legal immigrants without also dealing with the issues of illegal immigrants. I personally view it as a situation in which the solution to the problems of legal immigrants are held hostage unless the issues of the illegal immigrants are also resolved.    

As those who attempt to immigrate legally to the U.S. can painfully attest, the process can be complicated and long.Were it not for the complication factor, thousands of lawyers who work with immigration laws, including yours truly, would not have a job – at least not one dealing with immigration law.As an aside, for me, that is one of the most challenging parts of practicing immigration law.  I personally struggle with the fact that I make my living as a result of a gaggle of laws and regulations that are in many instances more complicated than they need to be, poorly thought out, and worst of all, poorly executed by the various federal agencies entrusted with the process.But I digress; the issue is that there are many things that could be done to help legal immigrants, including the following:

  • Increasing the number of immigrant and non-immigrant visas to better match the supply and demand;
  • Counting only the principal applicant, not their spouses and children against the quotas; and,
  • Removing limitations on the number of visas that can be allotted to any one country in a given year.

As a matter of fact, some Senators have already introduced a very specific bill dealing with some of those issues; the bill is called the Immigration Innovation Act. Even though this is a well-conceived specific bill, I have no idea whether it will be enacted or when.My senses tell me that those who want CIR will probably prevail in rolling this bill into the general discussions in CIR and that it will not be considered unless a consensus agreement is reached on the larger issues of immigration reform.Obviously, that is not I want to happen, but I fear that is what will happen.

Our last major immigration reform took place back in 1986 and discussions about CIR have been on and off ever since I started practicing immigration laws in the mid-1990s.Many have probably forgotten that immigration reform was one of George Bush’s key issues when he came into office in 2001.     The advent of the tragic events on 09/11/2001, put the issue on the back-burner until 2007.    Back in 2007, there was also great hope that the immigration issues would finally be addressed but they fizzled as a result of a much divided nation and congress (not to mention financial concerns that otherwise occupied the nation).    While today’s impetus for immigration reform appears to be a lot stronger than in 2007,  my personal opinion is that the nation is even more divided than it was five or six years ago.

During the national election we just experienced, the Hispanic voter voted overwhelmingly for Mr. Obama and candidates from the Democratic Party.    While it would be a mistake to view either party as monolithic on the issue of immigration reform, it is clear that correctly or wrongly, the Democrats are generally perceived as the party that will come to the rescue of the illegal immigrants while the Republicans only care about the immigration needs of big-business.   I believe those are vast over generalizations that are not necessarily correct, but I do think that is the general national perception.     Illegal immigrants come in all shapes, sizes, religious denominations, races and nationalities but it is no secret that the largest component of the illegal population is the Hispanic population.  It is also not a secret that the Hispanic population in the United States is by far the fastest growing segment in the population.    To a large extent, the entire immigration debate boils down to one single issue:    which party will secure the vote from the Hispanic population for a generation or more? *

The launch of this immigration reform discussion occurred when a bipartisan group of four Democratic and four Republican senators agreed on some key general principles.   One of the general principles was a “tough but fair” pathway to citizenship for those illegally in the United States.    A few days after the 8 senators released the guidelines of their plan entitled Bipartisan Framework for Comprehensive Immigration Reform, the President announced his own.   To anybody listening closely, it is clear that the President’s pathway to citizenship has less emphasis on the “tough but fair” aspect of it.

Let me state it bluntly:  if Congress is able to achieve Comprehensive Immigration Reform in a way that offers relief to the illegal population and a pathway to citizenship, the Democrats think that they will probably lock-up the Hispanic vote for a very long time to come and the chances of Republicans being elected for national office will diminish, or more likely evaporate.   It is simple math; most political experts would readily agree that each party will get about 40% to 47% of the vote no matter what happens in any given election.  Therefore, on any given election, each party is really fighting at the margins for 6% to 20% of the vote.  I am being generous by stating that it is 20%, it is probably a lot closer to the 6% than to the 20%, but I simply want to make a point that when both parties campaign, they are really fighting for a relatively small sliver of the total votes.    

The thought of locking-up the vote of the fastest growing segment of the population would be a huge accomplishment (I think it is a mistake to reduce the interests of Hispanics to simply immigration, but that is another story).    Please consider that in order to get comprehensive immigration reform, the Democrats would need to get significant backing from at least some members of the Republican party, certainly in the House of Representatives which the Republicans still control.   However, I believe that due to the general perceptions, a Comprehensive Immigration Reform deal would safely go on the asset side of the ledger for the Democratic party.     In essence, the call for a pathway to citizenship that is not so tough is what some in the Democratic party would probably view as the final nail in the coffin of an already fractured and stumbling Republican party. 

From the point of view of the Republican party, the election totals spoke loud and clear to them and they realize they have to do something to have a shot at the Hispanic voter.      Republicans need to straddle a fine line because they probably feel that if they give everything away, they will not get the credit for it and they will also alienate those in the Republican base who believe that individuals who broke the law (i.e. those who are in the U.S. illegally) should not be “rewarded.”     

Those who do not believe in rewarding illegal immigrants point to the fact that when the current immigration framework was agreed upon in 1986, the promise that was made was that those illegally in the U.S. would be offered a way to legally stay in the U.S. if the border was secured and the massive influx of illegal immigrants was resolved.    From their point of view, they are living through a sequel and what they perceive is an argument somewhere along the following lines:    “listen, we know what we agreed to back in 1986, we realize that there are 11 million people illegally in the U.S. now, but this time if you agree to provide a pathway to citizenship again, we really mean it, that border will become tight as a drum and employers who employ illegal immigrants will really, really get in trouble.”

Not only do the Republicans know that they have to do something to curry the Hispanic vote, they are also aware that we have mid-term elections coming up in two years.    Should the Democratic party re-take the House of Representatives, it is game over, the Democrats will pass whatever version of immigration reform they wish and Republicans will be left out in the cold.    Therefore, there is a strong incentive for the Republicans to negotiate and reach some sort of an agreement.    They are aware that while they probably will not get the bulk of the credit, they will be able to keep reminding the voters that the immigration reform was passed under a Republican controlled House of Representatives.

The bottom line is that we do have a very good environment for immigration reform because the Republicans probably feel that they are backed into a corner.    That being said, there is a strong likelihood that the Democrats will overplay their hand and take things too far.     I believe that the only way the Republicans will be persuaded to engage in Comprehensive Immigration Reform is if two things happen.   First, illegal immigrants are given some sort of probationary status before they can move to permanent residence and later citizenship.   Two, there is some framework to tie-in the conversion of that probationary status to permanent residence based on the results of improved border enforcement.  While I see some Democrats supporting the above, the President’s own words tell me that they are probably going to try to push it as far as they can, and if they do so, the Republicans will balk and take their chances with the mid-term elections.    

Notice, I am not saying that it is good or bad to tie-in the permanent residence to immigration enforcement or “border security,” there are many problems with it, namely how to measure it and the fear that the goal posts will be moved as events unfold.     However, I very much doubt that Republican strategists would allow Comprehensive Immigration Reform without some provisions that allow the Republicans to save face with their base.    If this cannot be accomplished, then I don’t see Comprehensive Immigration Reform occurring until there is a Republican in the White House or until the Democrats control the White House, the Senate and the House of Representatives.   

I am personally not optimistic, because despite the apparent momentum, the saying that the devil is in the details is very much in play.    The bottom line is that we have to wait until we see the details of what is negotiated.   The goal is to have a framework sometime in March.    Even if all parties agree to a deal and it becomes law, then there is the question of how long it takes to actually enact the law and start offering the benefits of the law to those who need it.    Some aspects of it could take as little as a few months to enact, while it is possible that others will take more than one year.

Again, I stress that my aim here was not to provide economic, moral, cultural or historical arguments for or against Comprehensive Immigration Reform but rather to highlight that all we have at this point is an opening salvo of what I believe is a complicated chess match between our two political parties (not to mention organized labor, big business, religious and charitable organizations, etc.)     For the record, I should note that I am not too fond of either party or the way in which they have jointly managed, or more accurately failed to manage, the affairs of our country.   Therein lies the reason for my pessimism, I have seen nothing in either party over the last few years that shows me that they are truly putting the interests of the country and its people ahead of their quest to maintain power and provide favors to their pet respective constituencies.   

I sincerely hope that I am proven wrong.    However, if I am not wrong, I would hope that if a deal concerning the illegal immigrants is not reached, that both parties will at least come together and  address the needs of legal immigrants because it is unconscionable that a legal immigrant should have to wait 5, 6, 7, 8, 9 years and possibly 20 years to obtain their permanent residence.    And no, I am not exaggerating in that last sentence; the imbalance between the supply and demand of visas is getting so bad, particularly for nationals of Mexico, China, India and the Philippines, that the wait lines of today may pale in comparison to what is coming.

As I close, I should point out that sitting back and waiting is not the only option, all of us interested in this issue should at least make it clear to our respective congressional representatives that ignoring the issue is no longer acceptable.