Immigration Legislation: Moving Forward After The Election

Thursday, December 20, 2012 - 10:14

In the aftermath of the presidential election, both political parties took a close look at the demographics of the electorate and reached the same overarching conclusion regarding immigration legislation: the time is more than ripe for legislation to fix our flawed immigration system. But as always, the devil is in the details. Both political parties have signaled how they would like to direct the discussion and there is consensus on several key areas for reform; however, it is at the point of specific solutions where the divergence in their paths becomes readily apparent. 

As expected, House Judiciary Committee Chairman Lamar Smith (R-TX), who will step down from that post in the new Congress, reintroduced the STEM Jobs Act. The bill would create a streamlined green card path for foreign nationals holding U.S. advanced degrees in a science, technology, engineering or mathematics (STEM) field. In order to accomplish this goal, STEM Jobs would create two new classes of employment-based permanent residents - specifically, EB-6 and EB-7 - for those candidates with master’s or Ph.D. degrees who desire to live permanently in the United States. The bill would unfortunately not add any new immigrant visas to the existing quota – which has stood at 140,000 per year since 1990. Instead, the bill would eliminate the Diversity Lottery immigrant visa program and allocate its 50,000 annual immigrant visas to the proposed EB-6 and EB-7 categories.

As a seeming olive branch to Congressional Democrats, who oppose the elimination of the diversity lottery, Chairman Smith’s bill also contained a provision which would expand the “V” class of nonimmigrant visa, a visa category that allows spouses and minor children of permanent residents – who are subject to lengthy green card queues and are likely to endure long separation from their family members – to enter the United States and wait here for an immigrant visa to become available.

However, just a few days after the House passed the Smith bill, Senate Democrats blocked it from consideration. Democrats in the Senate explained this action by stating their opposition to the provision effectively eliminating the diversity program. New York State Senator Charles Schumer voiced his support of the bill’s aim generally; yet, in reference to the elimination of the diversity visas he stated, “What we don’t do is take away other visas.” Democrats generally expressed support for the STEM legislation in regard to the creation of new classes of permanent residents, but they could not accept demolishing the diversity program in order to achieve it.

The President and his administration also came out in opposition to the STEM bill as proposed by the House Republicans. On November 28, the White House took the extraordinary step of issuing a Statement of administration Policy stating that it strongly supports legislation aimed at attracting and keeping candidates proficient in science, technology, engineering, and mathematics to the United States, but “does not support narrowly tailored proposals that do not meet the President’s long-term objectives with respect to comprehensive immigration reform.” The administration furthermore took the discussion and debate surrounding the STEM legislation as a sign that the Congress is ready to act soon on common-sense reform in order to “fix our broken immigration system.” The policy statement also elucidated the administration’s desire to tackle legislation geared towards the business immigration, as well as legislation to promote legitimation and family unification for those undocumented persons already present within the United States.

The defeat of the STEM Jobs Act shows the commitment of the White House and congressional Democrats to comprehensive legislative reform, as opposed to passing narrow bills with a single-minded focus on economic or, as in past Congressional sessions, enforcement issues (a method seemingly favored by Republicans, at least in the context of their support of the moribund STEM legislation).

Will Republicans and Democrats be able to achieve immigration consensus in the 113th Congress? We think they will. A new political climate in regard to comprehensive immigration reform is clearly emerging, with Republican restrictionists losing their influence over the debate. Senator Jim DeMint (R-SC) - an outspoken leader of those opposed to comprehensive immigration reform - has recently announced his retirement from the Senate. The new generation of rising Republicans, including Florida’s Marco Rubio and Kentucky’s Rand Paul, have come out since the election and expressed their support for reform. We remain optimistic.

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.comMichael Bonsignore, 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.