S.744 CIR Passes the Senate – The Pressure is On the House.

by Alan Lee, Esq.

By a vote of 68 - 32, comprehensive immigration reform (CIR) passed the Senate and is now on its way to the House of Representatives, where it faces stiff challenges. The package that emerged adhered for the most part to the vision of the Gang of 8 that drafted and defended it in the judiciary committee and Senate floor in the face of hundreds of amendments, some designed to kill the bill. Stronger security measures in the form of a near doubling of border patrol officers, more technology, and fencing along the southwestern border were key to attracting enough Republican senators to prevent filibuster. The timing of when the approximate 11 million undocumented immigrants can begin applying for registered provisional immigrant (RPI) status and green cards survived (one year after enactment to allow regulations to be written for the former and 10 years for the latter), H-1B visas are to be expanded in number to 115,000 annually with fewer added restrictions than previously contemplated thanks to the efforts of Sen. Orrin Hatch (R – Utah), the compromise on number of “W” visa guest workers by the U. S. Chamber of Commerce and AFL – CIO held up, and the legal immigration model with emphasis on expanding visa numbers and shifting future immigration to the economic needs of the country without hurting those already in the immigration queue survived. Some of the more interesting amendments among the more than 300 decided while the bill was in judiciary committee were that labor certification filings will cost $1000; dual intent for F-1 immigrants seeking higher degrees was supported; Hong Kong SAR designation for participation in the visa waiver program was passed; striking the one year asylum filing deadline was supported; termination of asylum or refugee status in cases of country return was passed; asylum applicants receiving work authorization within 180 days of filing was supported; a 3rd drunk driving incident involving one year of sentencing being made an aggravated felony passed; denial of RPI eligibility to anyone filing a frivolous asylum application was not passed; eliminating a waiver that would allow deported individuals or those reentering after 12/31/11 to apply for RPI status was also defeated; and allowance for RPI applicants to pay the $1,000 fine in installments was passed.

Now, only the House of Representatives is keeping comprehensive immigration reform from becoming law. Two thirds of the triangle of passage is already certain – the Senate and the President, who has played the role of cheerleader in chief, but not stepped in for fear of raising Republican ire. The Republican dominated House finds itself in a five-fold quandary. 1. It has no ready legislation other than bits and pieces embracing border security, employment verification, STEM (Science Technology Engineering Math) graduate immigration expansion, and a guest worker program. 2. Its Republican members find themselves with the choice of continually losing national elections if they oppose CIR as the voting strength of Hispanics, Asian Americans, and other ethnic minorities grow stronger versus facing local seat challenges from conservative and Tea Party advocates and sympathizers in their districts if they support CIR; 3. Speaker John Boehner has seemingly painted himself into a corner in stating and reiterating that he will not bring an immigration bill onto the floor unless it has the support of the majority of his party; 4. Any immigration bill introduced on the floor could wind up being co-opted, changed, or even discarded and replaced by the Senate bill; and 5. Stonewalling on immigration would reinforce the current American majority opinion of the Republican party as the party of intolerance as immigration reform is now favored by a widening majority of the country. This on top of the Republican failure to support any significant legislation on gun control favored by an overwhelming majority of the country would paint the party as further out of touch in defying the will of the people.

Most Americans by this time who keep track of the immigration issue have an idea of what the majority of the Republican House members want to finally occur. Number 1 on their wish list appears to be to have no immigration reform, twist the issues so that the Democrats wind up taking part or most of the blame, and by doing so, discourage future voting for Hispanic, Asian American, and other ethnic minorities who might then believe that their votes count for nothing. Number 2 is to fragment the disparate parts of comprehensive immigration reform into separate bills by which they can pick and choose the ones that they want, knowing well that CIR is full of fragile compromises and that the pulling out of a few threads will unravel the entire package. Number 3 is to have comprehensive immigration reform without the path to citizenship as the Republicans envision that most of those who will be legalized will eventually vote Democratic - thus relegating the approximate 11 million undocumented immigrants to second-class status; and to permit RPI status only when the border is declared 90% secure -ensuring the further delay of any type of relief.

Republicans though might also take a moment to consider the social unrest that denial of CIR might engender. Although the approximate 11 million may not have a legal right to stay here, many have been in this country for a long time and are not willing to self deport at anytime now or in the future. Many have also become vociferous in asking for legal status, especially those who may qualify for the DREAM Act, having been here before the age of 16. Will peaceful rallies turn into street confrontations? The disappointed may turn to other methods, and the streets of the cities come to resemble those of other countries filled with a grieved populace. What would we do in such a situation? There would not be enough detention centers to hold the possible numbers of demonstrators, and it would be beyond the resources of the federal government to remove large numbers of undocumented immigrants. Hopefully that scenario is not a secret wish by which Republicans without regard to the welfare of this country could demonize those who have waited so long for this chance.

Speaker Boehner has been quoted that the House will not be stampeded into adopting or even voting on the Senate bill, but it would not be overly dramatic to point out that, with all the pieces in place covering so many parts of future American life and the potential consequences of failure, the pressure is squarely on the House of Representatives to get this right.

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, on the New York Super Lawyers list (2011-12), and recognized as a New York Area Top Rated Lawyer in 2012. 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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