First Comprehensive Immigration Reform Proposal Set Forth By Senate Bipartisan Group

Alan Lee, Esq.

The first toe dipping in the immigration legislative ocean for this session of Congress was done today, January 28, 2013, by a bipartisan group of senators. Senators Charles Schumer (D - NY), John McCain (R - AZ), Richard Durbin (D - ILL), Lindsey Graham (R - SC), Robert Menendez (D - NJ), Marco Rubio (R - FLA), Michael Bennet (D - CO), and Jeff Flake (R - AZ) unveiled an encouraging plan with the 4 basic principles of 1. creating a path to citizenship contingent upon securing the borders and completing an entry - exit system tracking whether persons on nonimmigrant visas left the country when required; 2. reforming the present legal immigration system to better recognize important characteristics that would help build the American economy and strengthen American families; 3. creating an effective employment verification system; and 4. establishing an improved process for admitting future workers to serve the nation's workforce needs, while simultaneously protecting all workers.

To implement the first principle, the Senators propose that no one obtain a green card until the time that the borders are secure, and the creation of a Southwest commission of governors, attorney generals, and community leaders living along the border to monitor the progress of securing the border and making a recommendation as to when the bill's security measures are completed. Further that the wait except for minor children entering the U. S. previously and agricultural workers committing to the long-term stability of the nation's agricultural industries also be contingent upon every individual already waiting in line for green cards at the time that the legislation is enacted having received their cards. In the interim, illegal immigrants will be able to earn probationary legal status by paying a fine and back taxes. The probationary legal status would allow them to live and work legally in the U. S. It appears that those with orders of removal, deportation, or exclusion will not be excluded from participating as the proposal only bars individuals with serious criminal backgrounds or those who pose a threat to national security.

To implement the second principle, the Senators propose to fix the broken immigration system and attract the world's best and brightest by reducing backlogs in the family and employment based categories and by awarding green cards to immigrants who have received a PhD or Masters degree in science, technology, engineering, or math from an American university. The Senators proffer the now established argument that it makes no sense to educate the world's future innovators and entrepreneurs only to ultimately force them to leave our country at the moment they are most able to contribute to our economy.

To implement the third principle, the Senators propose to stiffen employer sanctions even further; that the federal government must provide employers with a fast and reliable method to confirm whether new hires are legally authorized to work in the U. S. (undoubtedly an expansion of the presently not completely reliable E-Verify system); and making prospective workers demonstrate both legal status and identity through non-forgeable electronic means.

To implement the fourth principle, the Senators propose a system whereby businesses are able to hire lower skilled workers in a timely manner when Americans are unwilling or unavailable to fill the jobs (most likely an expanded guest worker program). Employers will have to demonstrate that they are unsuccessful in recruiting an American to fill an open position and that the hiring of an immigrant will not displace American workers. The system would allow more lower skilled immigrants to come here when the economy is creating jobs and fewer when the economy is not. It would lastly permit workers who have succeeded in the workplace and contributed to their communities over many years to earn their green cards.

The Senators' proposals are encouraging, but the road to citizenship - the most controversial part of the program - needs more work in this writer's opinion. Although there is language that makes it appear that family and employment-based visa category backlogs will be reduced, there has been almost no willingness in Congress to afford more family-based visas in decades - only a shuffling of existing visas. There has been more willingness to take away from these categories than to add. Why would there now be a willingness to change that equation to allow the faster immigration of undocumented immigrants? The other contingency of a commission recommendation of Southwest border leaders that the borders are sealed before the first green cards appear seemingly places too much power in the hands of local leaders who may be tempted to continually move the goalposts.

With the submission of the first proposal, the work of Congress and the President can now begin on this issue of great importance to both parties. The President is expected to deliver his separate proposal tomorrow.

This article © 2013 Alan Lee, Esq.

About The Author

Alan Lee, Esq. is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Director, registered in the Bar Register of Preeminent Lawyers, and on the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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