Immigration Reform 2013 UpdateBy Perry Heidecker
At a press conference in Las Vegas on January 29, 2013, President Barack Obama stated that comprehensive immigration reform would be the top legislative priority of his second term. Such reform would include the following key points:
• Securing the borders;
• Easing the path for immigration of professionals with advanced degrees in science, technology, engineering and math;
• Tightening immigration enforcement;
• Implementing a national verification system;
• Creating a pathway to legal residency (or even citizenship) for undocumented aliens; and
• Improving the immigration legal system to decrease wait times, assist American employers and facilitate family reunification.
The President has attached such importance to this issue that, if no new bills are forthcoming, he promises to introduce his own legislative proposals and force a vote in Congress.
Although there is growing bipartisan support for action, there is no single piece of comprehensive legislation currently pending. There are, however, several proposals that bear watching.
THE DREAM ACT
Proposals of this type have been in circulation since 2001 and are intended to assist children who were brought to this country unlawfully as minors by their parents and are, as a result, undocumented. Thus far, no such legislation has been passed into law. However, in June 2012, the Department of Homeland Security announced a program that would permit deferral of deportation of a clearly defined class of individuals. Such persons must be:
1. Under the age of 31 as of June 15, 2012;
2. In the country prior to reaching age 16;
3. Residents of the United States continuously since their arrival;
4. In the United States on June 15, 2012;
5. Either be currently enrolled in school, have completed a secondary school, obtained a GED certificate or be an honorably discharged veteran of military service;
6. Free of conviction of any felony or serious misdemeanor and not be a threat to national security.
Proponents of Dream Act-type legislation would expand this program to include individuals who have been in the United States for at least five years and be of good moral character.
THE ACHIEVE ACT
This proposal, sponsored by Senators Kay Baily Hutchison and Jon Kyl (both now retired), also targets individuals brought into this country as minors by their parents. It would establish a system of special visas. The first stage of the visa process would involve a W-1 visa that would give the holder up to six years to complete a college degree and hold employment for 2.5 years or serve in the military for four years. Stage 2 requires the individual to obtain a W-2 visa that would be good for four years and would permit continued lawful employment. The final step calls for a five-year W-3 Visa that would permit continued employment and would end in full citizenship.
With the retirement of its principal sponsors, it is uncertain if the ACHIEVE ACT will garner continued support.
There is virtually no support for any program that would grant citizenship to undocumented immigrants who arrived in the United States as adults. With upwards of 11 million such people present in the country (nobody is really sure of the numbers), the effects on the social infrastructure, such as Social Security, Medicare and the education system, are too speculative, especially at a time of slow economic recovery. In addition, nobody is able to agree on penalties and priorities for workers who entered the country lawfully but have not yet attained citizenship.
THE NATIONAL VERIFICATION SYSTEM
Based on its initial success, President Obama has extended the E-Verify system through 2015. Several congressmen have proposed making a similar system mandatory for all employers. The main issues seem to be technical in nature. These include mitigating difficulties of implementation anticipated by small businesses, preventing fraud and avoiding identity theft. In addition, several labor organizations have complained of a high error rate in the present system. Also, because the E-Verify system does nothing to provide lawful status to undocumented workers, the unions argue that a mandatory verification system would simply drive such individuals further into the underground economy.
Although the shape of future reform is presently uncertain, it is a safe bet to assume new laws will be on the books by the end of the year. I will report on all developments as they occur.
Ironically, because the recent growth of the Mexican economy has outstripped that of the United States, unlawful immigration has dried up to a trickle of its former self.
Perry Heidecker is senior counsel for Milman Labuda Law Group PLLC, Lake Success, N.Y. The firm is a full-service Employment Law practice focused on counseling, preventive advice and training, policy and procedure design, representation before administrative agencies, litigation, and appeals.