2013: The Year of Comprehensive Immigration Reform

By R. Mark Frey

The election results are in, the tea leaves have been read, and the two major political parties have found themselves surprisingly in agreement on an issue of national concern, comprehensive immigration reform.

At the time of this writing, both the U.S. Senate and President Obama have broadly outlined their plans for immigration reform while a bipartisan panel of the Republican-led House of Representatives is working behind closed doors on its own draft with the expectation that it will be released in days.

What salient points have the Senate and President Obama covered in their respective plans?

The Senate plan introduced by a bipartisan group of eight senators (Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake) on January 28, 2013 is based on four legislative pillars:

• “Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing our borders and tracking whether legal immigrants have left the country when required”;

• “Reform our legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families”;

• “Create an effective employment verification system that will prevent identity theft and end the hiring of future unauthorized workers”; and

• “Establish an improved process for admitting future workers to serve our nation’s workforce needs, while simultaneously protecting all workers”.

President Obama, proclaiming that “now is the time”, outlined his plan in a Las Vegas speech on January 29, 2013 and laid out 4 key points:

• “Continue to improve the security on our borders”;

• “Crack down on the companies that hire undocumented workers”;

• “Provide undocumented immigrants the chance to earn their citizenship and hold them accountable by requiring that they learn English, pay taxes and a penalty, move to the back of the line, and pass background checks”; and

• “Streamline the legal immigration system for families, workers, and businesses.”

Although both the Senate and President Obama’s plans are in agreement in the broad scope of things, there are even at this early stage some key points of difference.

First, the Senate makes “securing the border” a prerequisite to normalizing the immigration status of some 11 million out-of-status foreign nationals currently in the United States. This appears to be a problem since there is no true mechanism for establishing when that precondition is met.

Conceivably, it could be many, many years before this issue would be addressed by the government, a scenario that appears in recent polling data to be unacceptable to the vast majority of Americans clamoring for reform now. This is most curious since the data show that the southwest border is more secure now than at any time in the past 20 years and, furthermore, unlawful crossings are at a 40-year low. This raises the question as to what is truly going on with the Senate’s position.

Second, some concern has arisen that family-based and employment-based visa petitions may be pitted against one another in a competition over a limited number of visas. The Senate’s plan and its accompanying language emphasize the economy, guest workers, low-skilled workers, and those with graduate degrees in science, technology, engineering, or math while mentioning in passing that substantial visa backlogs force families to live apart.

Does this mean, then, that we may expect to see an expansion in numbers for both employment-based and family-based visas to facilitate faster processing and elimination of the current years-long waiting period? Or, does the Senate plan mean that we may see expansion of business visa numbers at the expense of family visa numbers; that is, more restrictions such that some categories (e.g., brothers and sisters) are eliminated from the family-based system?

No one yet knows. And, what about President Obama? He addressed both employment and family-based visas in his speech but failed to discuss the issue in any detail.  (One telling example, though, may be that President Obama proposed expanding family-based visas to include GLBT couples, in contrast to the Senate).

It’s too early to tell how this will play out but suffice it to say, the plans will undergo great scrutiny as more details come out and the House releases its own plan on immigration reform soon. That’s a given.

One additional thing needs to be addressed in the coming debate over immigration reform and that involves the fact that our nation’s population is becoming increasingly more diverse. This debate should be more than a discussion about the economic impact of immigrants and whether they are a positive or negative force within that realm.

Comprehensive immigration reform is and should be about much more and address such issues as immigrant marginalization, inclusion, race, and national identity. This debate should confront these issues as we become a more pluralistic nation and find an absence of a majority population by mid-century.

President Obama briefly touched upon this in his Las Vegas speech when he opined that immigration reform is not only about policy but about people. And, most importantly, in talking about past generations of immigrants, noted “all of those folks before “they” were “us” were “them.”

With these demographic shifts coming over the next few decades, it is paramount that we figure this out and press onward with this great American experiment. Stay tuned.

R. Mark Frey is a St. Paul, Minnesota attorney who has been practicing immigration law exclusively for almost 25 years with an emphasis on political asylum, family immigration, naturalization, and removal defense.