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April 23, 2014

Immigration Legislation: What You Need To Know Now

Senator Rubio and his "Gang of Eight" proposed an outline for immigration reform Monday, and President Obama followed on Tuesday with his broad initiatives.  The bipartisan committee intends to have draft legislation by March, and a vote by August.  After many years of congressional debates to no avail, Democrats and Republicans are tripping over each other these days to be the first to suggest a reasonable plan to resolve the immigration concerns that most of the country agrees needs to be fixed in some way.  But immigration is perhaps more politically charged than many longstanding and widespread national concerns, and the concern is whether legislation proposed and passed so quickly can actually solve the problems with our current system.

In order to understand whether proposed legislation will make a positive difference, of course, it is important to understand what our current set of immigration laws provides.  Most Americans have little to no knowledge about the current laws restricting immigration, simply because they have had little to no meaningful exposure to these regulations.  Here is a review of some of the key issues proposed thus far:

The media has focused primarily on the estimated 11 million residing illegally in the U.S.  The debate ranges from whether we should provide any benefits to these individuals, to whether the fix should include a "path to citizenship," and what must occur before benefits are extended to this group.  In evaluating the best course, it is important to understand the difference between temporary work authorization, permanent residency, and U.S. citizenship.  The first level immigration benefit is temporary legal status coupled with employment authorization - a temporary work card with conditions for extension.  The second step is permanent residency – casually referred to as “green card” status, authorizing long-term stay and open employment authorization.  The very highest benefit would be U.S. citizenship – the right to carry a U.S. passport, a faster route to sponsor certain relatives, and most significantly for politicians – the right to vote.  Providing the right to vote for 11 million new voters certainly has serious political ramifications for both parties, and this is probably why the "path to citizenship" issue is so important in the congressional debate.  But for the actual individuals living here illegally for years, work authorization leading to a green card would be a major win.   

The bipartisan group has proposed that permanent residency for those here illegally only be granted after border security and a better tracking system have been established, and only after those foreign nationals who have applied through traditional legal channels have gone through the system and been approved for permanent residency.  President Obama thus far has opposed a hold on residency based on a decision on secure borders. The question is whether there should be some waiting period before granting permanent residency to those here illegally, and if so, how we will determine that the border is sufficiently secure to prevent mass illegal entry in the future.  How can this be measured?  Are secure borders a logical tie into the grant of permanent residency for this group, or should this be included but unrelated?  Requiring those illegally here to wait their turn behind those that have applied legally seems easier to track, but this, too, is a complex issue, as the lines for legal immigration are unreasonably long and should also be adjusted in a comprehensive bill.

While the illegal issue has been in the press for several years, in contrast, the proposed legislation's suggestions to change legal immigration are new and unfamiliar to most.  Specifically, for example, the proposal suggests that for the first time, permanent residency should be awarded to anyone that graduates with a U.S. Master's degree in science, technology, engineering, or math (“STEM” fields of study.)  Current law gives some preference to those with U.S. Master's degrees in any field of study.  Under current law, for example, additional H-1B temporary visas for professionals are available for those with U.S. Master's level degrees in any professional field.  But this new proposal goes way farther, issuing permanent residency for anyone with a U.S. Master's STEM degrees.  Would this include the graduate at the bottom of the class?  Would it include graduates with U.S. degrees completed online, or even U.S. Master’s degrees completed while residing overseas?  Should we grant permanent residency to a foreign national who comes to the U.S. for a one year graduate program and who has no job offer in a STEM field, maybe not even a temporary offer of employment in any field?  Do we want to immediately extend this valuable benefit to those who are able to graduate, or only to those able to secure job offers following graduation?  If so, how long must they work to maintain the status? 

The proposal also includes more visas for unskilled workers, which might include roofers, caretakers for the elderly, groundsmen, and other positions that have been difficult for employers to fill, as well as a program to add visa categories to bring in more temporary agricultural workers to the U.S.  Many employers will welcome such provisions. The details of precisely how employers would petition for these workers, however, and whether these employees ultimately will be given a long-term right to stay in the U.S. is the key to whether this represents worthwhile change or just more government bureaucracy.

© Lowndes, Drosdick, Doster, Kantor & Reed, PA, 2014. All rights reserved.

About the Author

Teresa B. Finer, Immigration Attorney, Lowndes Law firm
Of Counsel

For the past 25 years, Teresa Finer, Of Counsel and head of the Immigration and Naturalization practice, has assisted clients in the growing area of federal immigration law. Teresa provides legal advice to corporate and individual clients seeking assistance in securing temporary work authorization for foreign nationals, U.S. permanent residency (“green card” status) and U.S. citizenship. She represents clients throughout the U.S. in filings with the U.S. Department of Labor, U.S. Citizenship and Immigration Services, and the Department of State's embassies and consular...

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