Immigration Reform Finding It Difficult to Come to America

President Obama wants sweeping immigration reform based on four pillars: 1) strong border security; 2) a streamlined legal immigration process; 3) earned citizenship; and 4) a crackdown on employers who hire undocumented workers. This summer the U.S. Senate passed S. 744, also called the Border Security, Economic Opportunity, and Immigration Modernization Act.   And now it faces certain opposition in the House of Representatives. Maybe, some experts say, the President can move it forward via Executive Order.

What does this all mean for employers? Will we see immigration reform this year, or next, or the year after that? The best answer might be, “Who knows?” 

But First, What’s in S. 744?

Angelo A. Paparelli, a partner in Seyfarth Shaw, says S. 744 offers some surprises for employers. If enacted, Paparelli predicts S. 744 will require all employers to reassess their immigration-workforce planning and compliance programs. “Prudent employers will therefore approach S. 744 as an immigration portfolio-management challenge and take steps now to learn about its key provisions and prepare their organizations to adapt to its sweeping changes.”  Moreover, Paparelli says, “This is no easy task, for S. 744 is not a freestanding piece of legislation. Rather, it massively amends the Immigration and Nationality Act of 1952, which has been amended repeatedly ….”

It is not all bad news. Paparelli says there are “expanded opportunities for worker hiring and retention.” He refers to the proposed increase in the number of H-1B visas; reduction or even elimination of immigration visa quota backlogs; establishment of a new merit-based point system as an alternative to employer-sponsored immigrant visas; restoration of the privilege of visa revalidation within the United States in several non-immigrant categories; and new work visa benefits for citizens of Ireland, South Korea and countries with U.S. Free Trade Agreements.

He says U.S. Citizenship and Immigration Services would be required to “give deference in petitions and status extensions for H-1B and L-1 nonimmigrants unless there is a material error in the prior decision, a substantial change in circumstances, new material information has been discovered or, if the agency, in its discretion, decides that the extensions should not be approved.”  Work visa holders would be allowed to continue working while extension petitions are pending; a new W non-immigrant visa for unskilled and lesser skilled workers would be created; and undocumented immigrants would be allowed to adjust their status to Registered Provisional Immigrant (RPI) and granted employment authorization if they prove that they were in the United States on December 31, 2011, and April 17, 2013, and satisfy a variety of other conditions, including the payment of fines and back taxes, Paparelli explains.

An employer who knows that one of its employees has applied or will apply for RPI status after the program begins will not be in violation of the provision of the Immigration Reform and Control Act prohibiting the knowing employment of an unauthorized worker, Paparelli says.  He has offered his suggestions in a blog post titled If Ever There Is a Time for Immigration Portfolio Management, It’s Now, available at http://bit.ly/13XGN2H.

And the Bad News

On the downside, Paparelli points to increased compliance obligations and penalties for employers. These include mandatory electronic employment verification; states and political subdivisions would be allowed to continue to enforce business licensing and similar laws if employers fail to use E-Verify; burdens, fines and penalties for unlawful employment would be dramatically increased; additional forms of immigration-related employment discrimination would be prohibited; persons engaged in “foreign labor contractor” activities would be extensively regulated; and, the H-1B and L-1 visa categories would include numerous additional regulations and penalties, especially for H-1B and L-1 dependent employers.

Paparelli says “employers should begin to consider how the pluses and minuses of the legislation might apply, and what proactive steps can be taken now so that their businesses are poised to exploit new immigration opportunities while minimizing the expanded array of compliance risks.” He recommends a “holistic approach to immigration portfolio management.”

The Bill’s Chances

Still, as described in an article by attorneys with the Elmore & Peterson Law Firm, S. 744 still has to survive the House of Representatives, where House Speaker John Boehner must decide to put it up for vote. Rep. Boehner has made it clear, the Elmore & Peterson article stresses, that he will allow a vote only if a majority of House Republicans―or 118―support reform.  “At this time,” the Elmore & Peterson attorneys write, “it is unlikely that 118 House Republicans would support the Senate’s version of the bill. Current estimates report that a mere 60 Republicans in the House of Representatives support S. 744.”

Any alternative bill from the House is likely to be “less accommodating to immigrants” since the majority of House Republicans are unhappy with the border control portions of S. 744, the attorneys say.  “Specifically,” they write, “Republicans argue that before including provisions in immigration reform which would give undocumented individuals a pathway to citizenship, border control must be stricter. Additionally, House Republicans have expressed strong disapproval for many other pro-immigrant provisions of the Senate’s version of immigration reform …”

It's All Up to Boehner?

So if the House won't even vote on the bill, is that it then? It's over?  Nope.  There is always another way, say Gary Endelman and Cyrus D. Mehta, immigration attorneys at Cyrus D. Mehta & Associates.

 “The President always has this ace up his sleeve, which is the ability to grant relief through an executive order, to force Congress to pass immigration reform,” Endelman and Mehta write. “If Congress in fact fails to pass immigration reform, the President can actually bring about immigration reform, which may look better than any of the reform proposals being floated by the GOP in the House. Of course, a future President can get rid of such administrative measures, but this usually does not happen as it would be politically too dangerous to further alienate the Latino vote….  In light of  all the uncertainty regarding the passage of a comprehensive immigration bill, a Presidential executive order, or the potential for one (as [Sen. Marco] Rubio presciently realized) may not be such a bad thing.”

Endelman and Mehta posted this and several other insights on immigration reform in the article, The Lazarus Effect:   How Comprehensive Immigration Reform Can Survive the House GOP and Come Back to Life.

Disclaimer: The views and opinions expressed in this article are those of the individual sources referenced and do not reflect the views, opinions or policies of the organizations the sources represent.