Presidential elections provide the opportunity to peer into the heart of each party’s core constituencies through examination of their respective platforms. When it comes to immigration, the same rules hold. A review of this year’s Democrat and Republican platforms reveals dramatic contrasts in what each party considers most important and on how our country should approach the various issues presented. One way or another, given the amount of work to be done in crafting and prioritizing immigration policies, it is clear that the 2012 election has the potential to change the landscape of how our federal government approaches immigration challenges.
The Republican 2012 platform states that the GOP supports the rule of law and opposes any form of amnesty to persons who have entered the U.S. illegally or overstayed their visas and are now present illegally. The GOP’s top priority is securing the nation’s borders, whereas the Democrats assert that the southwest border is more secure now than ever. To resolve the issue of illegal immigration, the GOP would like to encourage “self-deportation” and would like to see tougher penalties for identity theft, human trafficking and dealing in fraudulent documents.
The Democrats support comprehensive immigration reform, specifically the facilitation of bringing undocumented immigrants “out of the shadows” and regularizing their status, in conjunction with an obligation that they learn English and pay taxes. The Democrats support family reunification, including streamlining the current process of legal immigration for immediate relatives of U.S. citizens. The Democratic commitment to business immigration is to create a system for allocating visas that meets the nation’s economic needs, keeps families together and enforces the law. Reform includes holding employers accountable for those they hire. The Democrats would like to prioritize enforcement against criminals who endanger communities, instead of immigrants who pose no threat.
GOP immigration business priorities begin with an expansion of the E-Verify program – making it mandatory and nationwide – and encourage active state enforcement of it. The Republicans favor the SAVE (Systematic Alien Verification for Entitlements) program, which verifies the lawful presence of applicants for state or federal government entitlements or IRS refunds, and would like to make it mandatory. They support granting more visas to U.S. graduates of STEM (science, technology, engineering and mathematics) advanced degrees. The platform says Republicans will entertain the notion of a guest-worker program, which would primarily accommodate unskilled labor. Lastly, the party would call for English as the nation’s official language.
The Democrats also support the DREAM Act and, until it is passed, pledge to continue the President’s ongoing initiative of deferred action to individuals who were brought to the U.S. as young children and who are now adults, commonly referred to as “DREAMers.” The Republicans strongly oppose both the proposed legislation and the administrative policy, saying they will reverse the policy if they take the White House. The GOP’s hardline view is to categorize DREAMers with all undocumented adults. In essence, however, these individuals are being punished for actions taken on their behalf when they were children. To the Democrats, these people represent a portion of the workforce that has been raised in America and educated in the American school system. Their view: An investment has already been made by the U.S. in the education of DREAMers, so why not reap the benefit of having them as productive members of society?
Platforms aside, in practice there have been several proposals in Congress relating to business immigration. S. 3245, the Democrat-sponsored bill that contains an extension of the EB-5, or “millionaire” investor program, was approved by the Senate and the House and needs only be signed by the President to be enacted. A bipartisan bill, the Startup Act 2.0, would create a new STEM visa category that puts graduates with a master's or PhD on the path to a green card; it also introduces an entrepreneurial visa for individuals looking to invest in the U.S. Similarly, a Republican-sponsored bill, the SMART jobs act, would create a new visa category for STEM master’s or PhD students and provide a path to a green card. In the same vein, the STAR bill, also Republican-sponsored, would create a STEM green card path, but by eliminating the current Diversity Visa program rather than adding new visa numbers. Sen. Chuck Schumer (D-NY) has also crafted a STEM bill called the Brains Act, which provides foreign STEM students with a path to a green card – but only by competing with American STEM students, as it requires the employer to go through the labor certification process.
The Fairness for Highly Skilled Immigrants Act (HR 3012), a Republican initiative, would eliminate per country caps for employment-based immigration. There are a few bills that propose this measure. The measure is extremely positive for highly skilled workers of certain countries who under the current visa backlog could be waiting for years for their green cards. However, unless new visa numbers are added, HR 3012 alone would negatively impact nationals of other countries, as their previously relatively short wait times would be foreseeably lengthened. In addition, Senator Charles Grassley (R. IA) proposed an amendment that would burden employers immensely. The amendment creates onerous and burdensome obligations on employers, in particular small employers, with regard to H-1B applications. The H-1B application process is already limited in scope and is both challenging and expensive to obtain.
The STEM bills could help the U.S. immensely with the economy and improve the development of science and technology in the world. Each of these bills, however, is only a proposal. None has been made law (although S. 3245 awaits only presidential signature). While the platforms are clear on the issues, the practical application is not as transparent. Then again, historically speaking and regardless of the political affiliation, a party’s platform and its practice are all too often two separate things.
Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at email@example.com. Neena Dutta, an Associate at the firm, and Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.