The push for a comprehensive overhaul of the nation’s immigration laws and system enters one of two most critical phases, as the full Senate begins debate and consideration of the 800+ page bipartisan Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744). The bill, if enacted, would be the most sweeping overhaul of the nation’s immigration and border control laws in nearly 30 years. Debate in the Senate is expected to play out over the next three weeks, with proponents hoping for a final vote and passage in the Senate before the July 4 recess.   

The bill, which passed out of committee on May 21, had bipartisan support in the Senate Judiciary Committee. But Senate Republicans remain divided over how much to support the bill and cooperate with President Obama. Republican supporters of the bill see passage of the reform measure as a way to garner support among Latino voters, who last year overwhelmingly supported President Obama and helped him win re-election. They hope to make modest changes to the bill during the upcoming floor debates, changes that could help secure broad support among both parties. One such GOP supporter of the bill called it a “thoughtful bipartisan solution to a tough problem.” Conservative Republican senators, on the other hand, hope to unravel this carefully crafted compromise package by unleashing amendment after amendment, which could gut the bill. Their goal is to defeat the bill altogether, or at least eliminate the provision for a pathway to citizenship for the estimated 11 million foreign nationals who are in the U.S. without authorization. 

Meanwhile, President Obama, who has been a strong and vocal supporter of immigration reform, reasserted his position in a widely publicized speech, stating that Congress “needs to act and the time is now.” He added, “If you genuinely believe we should fix our broken immigration system, there’s no good reason to stand in the way of this bill.” The President’s remarks — his most forceful in weeks — signaled an effort to exert his influence at this important moment in the reform process. At the same time, he is mindful that being too far in front on immigration could backfire, upsetting the delicate balance negotiated thus far. The president’s re-focus on immigration reform is encouraging; ultimately his active support — at least behind the scenes — will be key to getting the bill passed.

While legalization and a path of citizenship for the 11 million is certainly the center piece of immigration reform — and perhaps the single most divisive issue — there are many fundamental and significant changes to the current system that will impact the future flow of immigrants as well as those currently in the United States in status.  Some of the most significant changes include: 

Border Issues

The bill establishes heightened border security along the southern border and specifies requirements that must be met before legalization can move forward. Some of these include: an integrated entry-exit system at air- and seaports that collects machine-readable visa or passport information; implementation of a mandatory employment verification system; improvements to ports of entry, including an additional 3,500 CBP officers; a “Comprehensive Southern Border Strategy” (to achieve and maintain an effectiveness rate of 90 percent in all southern border sectors); and a “Southern Border Fencing Strategy” (to identify where fencing, including double-layer fencing, should be deployed).

Legalization and Path to Citizenship

Foreign nationals in the United States without documentation would be able to apply for Registered Provisional Immigrant (RPI) status. In order to be eligible, applicants would need to demonstrate that they were present in the U.S. prior to December 31, 2011, and have maintained continuous physical presence since then. Certain inadmissibility grounds will apply and bar an individual from RPI status, including certain criminal convictions. RPI status holders would be eligible to apply for a green card after holding RPI status for 10 years, and will be able to apply for citizenship three years afterwards. Individuals in RPI status would be able to work for any employer and travel abroad. (Spouses and children of RPIs who are present in the United States would be treated as derivative beneficiaries of the principal applicant.) Provision is also made for those who were present as of 12/31/2011 but who had been deported on noncriminal grounds.

Employment-Related Immigration

The bill provides significant exemptions to the annual numerical limitations for green cards by focusing on those who benefit the economy. These include highly skilled professionals – the current “EB-1” preference categories of extraordinary ability, outstanding professors and researchers, multinational executives and managers; Ph.D. graduates in a STEM (science, technology, engineering, and math) field; and foreign physicians who have completed the two-year home residence requirement, if subject, or obtained a waiver. An increased number of green cards would be made available to professionals holding advanced degrees; certain individuals earning a U.S. master’s degree in a STEM field; skilled workers; and others. Derivative beneficiaries — the family members of such applicants — will not be counted against the annual visa limits.

H-1Bs

The bill raises the limits on H-1Bs to levels that are closer to the realities of today’s marketplace, but requires all employers to recruit American workers by posting job openings and conducting additional good faith recruitment efforts. Certain H-4 spouses would receive employment authorization.

Family Immigration

The bill improves the family-sponsored immigration system by eliminating the current visa backlogs within 10 years; recapturing unused visas from past years; allowing parents of U.S. citizens to bring their minor children at the time they immigrate;, and treating spouses and minor children of lawful permanent residents (LPRs) as immediate relatives and thus permitting them to apply for permanent residence immediately. But, the bill also eliminates the ability of U.S. citizens to petition for their siblings or for their adult married sons and daughters over the age of 31.

Merit-Based System

S.744 creates a new merit-based system where individuals would compete annually for a set number of visas. The new system would function alongside the family and employment systems, awarding points for meeting criteria, such as length of employment, skill level, education, English language, and age. Points would also be given for being a sibling or a married son or daughter over 31 years old.

Other Provisions

The 867-page bill includes a number of other provisions impacting discretion, judicial review, repeal of the diversity visa program, creation of a new W visa for low-skilled positions, and reform to the “Conrad 30” program for foreign physicians.

If enacted, certain provisions will become effective shortly after the bill becomes law and others, such as legalization mentioned above, will require a series of enforcement measures to go into effect.  Changes in family- and employment-based immigration categories, for example, would go into effect gradually, giving DHS the opportunity to reduce extensive backlogs that have built up over the years. 

 

What can we expect during the next three weeks?  Senate Democrats and Republicans are expected to consider and debate hundreds of amendments. Generally, the noncontroversial amendments will be accepted on a bipartisan basis with the most controversial held off to later in the process, presumably around June 24. Some amendments will require 60 votes; others a simple majority. Meanwhile, the Congressional Budget Office (CBO) will release a score for the bill — estimating how much the bill will cost the government (add or reduce the deficit) over the next 10 years.

Because Senate rules generally do not establish limits on the length of debate, the only formal procedure that Senate rules provide for breaking filibusters (endless amendments being offered, one senator speaking at length, etc.) is to invoke cloture. When Senate Majority Leader Harry Reid has decided that the time for offering amendments has expired, he will invoke cloture to end debate on the bill. If any Senator objects to cloture, it will then require 60 votes to end debate and move to a final vote. If cloture is successfully invoked, there will be an additional 30 hours of debate and amendments. Assuming cloture is invoked, the Senate will vote on the bill as amended. That vote only requires a simple majority of the Senate for passage, and is expected in early July. Then, focus moves to the House of Representatives – the second critical phase of this bill’s legislative process – where similar provisions are reportedly making their way through the Republican-controlled House. Members of the House may introduce their own comprehensive package, or may choose to vote on a number of separate immigration bills that are packaged together for consideration. If the House passes one or more bills that differ from the Senate bill, they will need to be reconciled.

Proponents of immigration reform are hoping that President Obama will find a substantial immigration reform bill on his desk in August. But, a lot of work has to be done in order to make that happen.