March 26, 2023

Volume XIII, Number 85


March 24, 2023

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What is Next for Immigration Reform?

On September 6, 2014, the White House announced that President Obama would not entertain executive action on immigration reform until after the 2014 midterm elections, a fact subsequently supported by the President’s appearance on NBC’s Meet the Press. This comes just over two months after the President’s initial June 30th promise to utilize executive action to enact certain reforms by the end of summer. With this decision to delay action, it is important to ask what is next for immigration reform?

The 113th Congress has not been particularly productive in enacting reforms, due in part to the fact that both Republicans and Democrats differentiate in their beliefs of the necessary size and scope of changes to the immigration system. The Senate has produced a comprehensive immigration reform bill, S.744 The Border Security Economic Opportunity, and Immigration Modernization Act, which passed with a vote of 68-32 in late June 2013. The bill was at the time seen as a monumental compromise that saw 13 Republican senators vote alongside Senate Democrats to fund greater border security, amend certain restrictions on immigrant and nonimmigrant visas, and provide a pathway to citizenship for upwards of 11 million undocumented immigrants currently believed to be residing in the United States. However, the likelihood of a comprehensive reform package has since been downplayed, and the focus has shifted to a piecemeal approach in which issues are tackled individually.

The 113th House of Representatives for its part recently passed its first two pieces of legislation concerning immigration reform, specifically related to the recent humanitarian crisis on the U.S.-Mexico border. On August 1, 2014, the House passed H.R. 5230, which provides $694 million dollars to enhance border security, well short of the Obama administration’s call for $3.7 billion. It also amends the Immigration and Nationality Act and William Wilberforce Trafficking Victims Protection Authorization Act of 2008, removing special treatment of children from non-border nations. Additionally, the House passed H.R. 5272, which would suspend the President’s ability to extend deportation relief to any new young, undocumented immigrants after June 30, 2014. These bills served as a mostly symbolic gesture, with no likelihood of debate in the Senate.

However, like the 113th Congress, all of these bills will soon be swept away in preparation for a new Congress. On January 3, 2015, bills not considered by Congress or signed into law by the President are considered expired. This means that all bills, including Senate’s comprehensive immigration bill, will cease to be held over the 114th Congress’s head, and the reform process will start anew with a brand new Congress.

There are limited options by which immigration reform can still occur in 2014:

As previously mentioned, President Obama is preparing to take executive action to enact certain reforms. The President is expected by many to enhance border security and simultaneously expand deferred action for individuals with significant ties to the United States or citizens of the United States. Slightly less controversial, but equally important acts such as expanding non-immigrant visas to more entrepreneurs and highly skilled individuals, alleviating restrictions on non-immigrants and their spouses, expanding or eliminating quotas, or simply halting the inclusion of derivative family members towards the annual quota, could also be enacted and positively alter the immigration system as well. However the time and extent of these actions has yet to be determined. All that is known is that the administration has promised action before the end of the year.

Additionally, a lame duck Congress could choose to enact reform. However, the complexity necessary to make any substantive comprehensive reform would most likely not lend itself to a lame duck session. According to the Congressional Research Service, since 1994 lame duck sessions have lasted on average fewer than 12 days in each house, giving Congress little time to pass a comprehensive package. With this small window of time, it would be difficult for members of Congress to find common ground on controversial topics such as legal status for undocumented immigrants and border security. Although anything is possible, it may be more reasonable to expect a lame duck Congress to bring reforms with considerable bipartisan support to the floor such as extending immigrant and non-immigrant visas to high skilled foreigners and affluent investors in order to spur job and overall economic growth.

A last option could see both the Obama administration and U.S. Congress both let reforms die until next year. The Obama administration has made consistent promises to utilize executive actions to bring reform, but has yet to enact anything substantial. Likewise, Speaker of the House John Boehner has already mentioned in a September 2, 2014, interview that 2015 could be a good year to enact reforms, thereby possibly insinuating that reforms are not on the table for 2014. Only time will tell what reforms, if any, are made at the end of the year. But, with preparation for the 2016 general election on the horizon, the future of any substantive reform is far from definite.

Written with contributions from Paul Stern.

©2023 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume IV, Number 272

About this Author

Laura Foote Reiff, Greeberg Traurig Law Firm, Washington DC, Northern Virginia, Labor and Employment, Immigration Law Attorney

Laura Foote Reiff Co-Chairs the Business Immigration & Compliance Practice and is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies, as well as related employment compliance and legislative issues.

Laura advises corporations on a variety of compliance-related issues, particularly related to...