Immigration Reform: Striking While The Iron Is Hot

Monday, November 26, 2012 - 14:57

On November 6, 2012, the people of the United States reelected President Barack Obama. Almost immediately, Republicans and Democrats alike began their post-election analysis of the electorate and came to the same conclusion: With 71 percent of Hispanics supporting the President and his pro-immigration stance, there is a real demand for change in the nation’s immigration laws. Cognizant of the importance immigrants have to our economy and our future, Sen. Charles Schumer (D-NY) and Sen. Lindsey Graham (R-SC) have rejoined forces and are once again pushing for much-needed comprehensive reform. Though the specifics of a renewed plan have not yet been unveiled, it is worthwhile to revisit previous Schumer-Graham proposals for a glimpse at what the future of comprehensive reform might hold.

The first time these senators joined efforts was in March 2010. Their bipartisan platform aimed to balance the senators’ belief that “Americans overwhelmingly oppose illegal immigration and support legal immigration.” It also aimed to balance the goals of their respective parties. The four pillars of the 2010 Schumer-Graham model were: (1) a biometric Social Security card to ensure the authorized employment of workers, (2) a strengthening of enforcement in the interior and at the border, (3) a process that would allow for the flow of temporary workers, and (4) legalization of undocumented aliens that would include both benefits and penalties.

Under the 2010 plan, all U.S. citizens and aliens in lawful status would need a biometric Social Security card to obtain employment. The card would contain the individual’s biometric, but not private information. Federal law would require U.S. employers to swipe the card to verify the identity and immigration status of the individual, thus preventing the unauthorized employment of workers.

To strengthen interior and border enforcement, this proposal sought additional federal funding and staffing to U.S. Customs and Border Protection. To reduce criminal activity within the United States, the framework also advocated for increased domestic enforcement, such as an improved system of apprehending and deporting aliens who commit crimes. A strengthened enforcement of the interior further envisioned an entry-exit system that would alert authorities of immigration law violators. This system would track the entry of aliens who are coming to the United States on a visa and whether they fail to timely depart the United States.

Protecting the United States from unlawful and criminal activities of foreign nationals, according to Senators Schumer and Graham, was a significant motivation for immigration reform. It was not, however, the only goal in mind. The senators also believed that to ensure the United States’ economic success, we must welcome “the best and brightest” from around the world. The proposed legislation would offer a path to permanent residence for those holding a PhD or master’s degree in science, technology, engineering, or math from a U.S. university. Moreover, the Schumer-Graham framework proposed a system that would grant lower-skilled employees the opportunity to work in the country.

After Senators Schumer and Graham introduced this framework, other members of Congress developed immigration reform legislation. In April 2010, Senate Majority Leader Harry Reid (D-NV), U.S. Senator Robert Menendez (D-NJ), along with Senator Schumer revealed another Comprehensive Immigration Reform framework. This invoked some components of the Schumer-Graham proposal, as well as those from a proposal by U.S. Representative Luis Gutierrez (D-IL). In March 2010, President Obama commended Senators Schumer and Graham for their leadership and initiative in commencing bipartisan efforts to address immigration and the need for reform. Due to the lack of Republican support for the Schumer-Graham proposal, Senator Graham stated in April 2010 that immigration reform was no longer a viable option, but would be in 2012.

It is now 2012. Obama’s reelection put to rest the primarily Republican Party platform of rejecting immigration reform. Shortly after President Obama’s victory, Senators Schumer and Graham appeared on “Meet the Press” and CBS’s “Face the Nation,” respectively, to discuss how the reelection is the momentum for immigration reform. Senators Schumer and Graham discussed in general terms that the goal of their new framework is similar to that of their 2010 proposal. They again are calling for legislation that would strengthen border security and would allow undocumented aliens who have been living and working in the United States to legalize and, over time, obtain citizenship, with certain restrictions and penalties. The time to act is now. As I discussed in my previous article, there are currently two immigration reform proposals pending in Congress. One proposes to increase the number of visas available to STEM degree holders and the other proposes to eliminate the per-country quotas for employment-based immigrant visas. Meaningful reform requires additional visas.

It is imperative for the reform to occur within the first year of President Obama’s second term. As 2014 approaches, immigration reform will become less of a priority. Midterm elections will be the focus in Washington. During his campaign, President Obama acknowledged that he failed to achieve his first campaign’s promise of immigration reform. The president’s concession, the power of the Latino vote, and the resurgence of the Schumer-Graham coalition should serve as the force to bring about this long-awaited and much-needed change.

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 mpatrick@fragomen.com. Vivian Carballo, a law clerk 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.