Comprehensive Immigration Reform – U.S. at a Crossroad
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The Legal Intelligencer
March 15, 2006
Comprehensive Immigration Reform - U.S. at a Crossroad
By Richard R. Rulon
Richard R. Rulon is a founding partner of Klasko, Rulon, Stock & Seltzer, LLP, a firm devoted exclusively to the practice of immigration and nationality law with offices in Philadelphia and New York. He handles all aspects of immigration law, including assisting companies and individuals in obtaining employment- and family-based visas; resolving citizenship issues and obtaining naturalization. He can be reached at .
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Comprehensive Immigration Reform – U.S. at a Crossroad
There are currently approximately 11 million undocumented aliens in the United States making up 5% of the U.S. workforce. Despite dramatic increases in overall spending and manpower devoted to immigration enforcement, nine million have entered since 1990. At the same time, there are not enough U.S. workers to meet the needs of America’s businesses for both highly skilled and essential workers and the present immigration system does not provide nonimmigrant and immigrant pathways that come anywhere close to making up this shortfall. Responding to considerable public pressure from both restrictionists and advocates of comprehensive immigration reform to fix our country’s failed immigration system, Congress has taken up this daunting challenge. However, in order to put in place an improved immigration system, Congress and the President must reach an agreement on a host of complex and extremely divisive issues and the road they
choose to take will have a dramatic impact on the future of our country.
One road America could take is laid out in the Border Protection, Antiterrorism and Illegal Immigration Act of 2005, H.R. 4437, passed by
the House of Representatives in December of 2005. It is a stand alone enforcement and border security bill which seeks to more stringently enforce our present immigration system. This legislation, among other things, creates a new federal crime of “unlawful presence” and, by defining this term very broadly, renders virtually every violation, however minor, technical or non-intentional, a federal crime. Thus, for example, F-1 students who drop below a full course level and H-1B workers who get laid off and do not find a new sponsoring employer within a small window of opportunity could be found guilty of committing this new crime. Even more troubling, such a finding could trigger “aggravated felony” liability subjecting individuals to mandatory detention and no relief from deportation. In the opinion of many, the enactment into law of this or a similar enforcement-only bill will be perceived as sending a message to the rest of the world that America no longer is a place that welcomes immigrants.
The Senate is presently debating whether America should take a different road - one that reaffirms this nation’s heritage as a land of immigrants and seeks to enhance the security of our borders and compliance with our laws; to unite long separated families; to provide U.S. industries, both on a temporary and permanent basis, with access to the talent necessary to keep this country competitive in the global marketplace; and to put in place a rational, reasonable and workable approach for dealing with the estimated 11 million undocumented foreign nationals presently in our country.
Senator Arlen Specter, Chairman of the Senate Judiciary Committee, has circulated his own proposed Bill known as the “Chairman’s Mark” which sets out one possible pathway for accomplishing these laudable objectives. The “Mark,” according to Senator Specter, is drawn from bills offered by various Senators and contains provisions that prioritize border security and enforcement measures, creates a visa program enabling employers to hire foreign workers when no willing U.S. workers are available, and eliminates the lengthy backlogs for adjusting to permanent resident status.
With respect to border and interior enforcement, the “Mark” provides for additional enforcement agents and increased technology at the border and requires the Department of Homeland Security to submit plans for both systematic surveillance of land and sea borders and a national strategy for border security. It also tightens laws regarding deportation; increases penalties for document fraud, particularly as it relates to marriage fraud; and introduces a new workplace enforcement program to address unlawful employment of aliens which is to be phased in over five years and would require all employers to check the Social Security numbers of new hires against a federal database.
To handle the 11 million undocumented aliens in the United States, this proposed legislation, rather than simply calling for their removal, provides an opportunity for undocumented aliens employed in the United States on January 4, 2004 to remain and work here pursuant to the grant of conditional work authorization and allows their spouses and children to remain with them.
The “Mark” also contains provisions relating to employment-based immigration including the creation of a new H-2C nonimmigrant temporary guest worker category which would enable residents of foreign countries, who can show they have a job awaiting them, to obtain H-2C visa status for three years, renewable for another three years. These workers, after reaching the six year maximum stay, would be required to return to their home countries for a period of one year before they would be eligible to return to the U.S. A new F-4 student visa category is added for individuals pursuing an advanced degree in math, engineering, technology or physical sciences and permits those planning to seek employment in the U.S. in such fields of study to be intending immigrants. The current lack of adequate numbers of H-1B visas is addressed through the creation of a market-based H-1B cap with an annual visa floor of 115,000 and a new unlimited H-1B cap exemption for foreign nationals who have earned advance degrees in math, engineering, technology and physical sciences. The Mark also increases the cap for employment-based immigrants to 290,000 annually from 140,000 and removes the limits on those who qualify as “extraordinary aliens,” “outstanding researchers” and those whose immigration is in the national interest. These and other positive visa reform measures contained in this proposed legislation should help substantially in filling the critical gaps in the U.S. labor force and in providing U.S. employers with access to the talent they require to remain competitive in the global marketplace.
Most lawmakers and the press have come to equate “immigration reform” with the question of whether or not enhanced immigration enforcement should be coupled with a guest worker program that is more responsive than the current immigration system to the labor needs of the U.S. economy. In fact, true immigration reform is a far more complex problem that does not lend itself to simplistic solutions. Such legislation, if it is to be meaningful, must offer a reasonable path to permanent resident status to the 11 million undocumented aliens in our country and provide a new temporary guest worker program that also provides a path to permanent resident status, family-based and employment-based immigration backlog relief, nonimmigrant and immigrant visa reform and no new restrictions on due process and immigration-related judicial review. Whether Congress can pass such a piece of legislation during the current session is very much an open question but there is no doubt that such legislation is needed now.
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