Real Immigration Reform – Is It About To Happen?

Wednesday, April 24, 2013 - 12:49

The Editor interviews David Grunblatt, Head of Proskauer’s Immigration & Nationality Group in the Labor & Employment Law Department, resident in the Newark, New Jersey office.

Editor: What are the principal cornerstones of immigration reform as enunciated by the U.S. Senate’s “Gang of Eight”?

Grunblatt: The overarching theme of this immigration reform proposal is that when these lawmakers said this measure would address immigration reform comprehensively, they really meant it. The hallmark principles, a product of months if not years of work, include border control, securing a pathway to citizenship for the undocumented, employer compliance and repairing the legal immigration system.  While this administration has done a fairly good job of meeting previous goals in the area of controlling the borders, there is a consensus among many that there is still much to be done. The second goal to secure a pathway to citizenship for the undocumented is a core priority for many constituencies. The third goal of employer compliance and internal enforcement is really an attempt to gain control over the hiring and firing of workers and the general work environment with regard to compliance with U.S. immigration laws. The fourth goal to fix the legal immigration system is one, which I think everyone agrees, is necessary to restructure a system which is completely dysfunctional. It’s safe to say that there is a consensus among many, certainly the Gang of Eight, that you need all four of these goals to be met.

Editor: What hurdles must the bill overcome before it becomes law? Would it be a better strategy to introduce certain reforms on a piecemeal basis?

Grunblatt: There was a comment by Speaker John Boehner (R-OH) that the House might break up the bill into more manageable pieces to introduce separate components, although he made it clear that this idea was not fixed in stone. That approach could be very problematic because there are so many conflicting constituencies who each sacrificed something to achieve consensus on this bill. By trying to pass the pieces separately, the whole house of cards may collapse if one group’s agenda is satisfied after only one part of a 10-part series of bills has already been passed. There will certainly be pressure to do that, but it could be very damaging to the immigration reform initiative if it happens. Immigration reform is more complex than other disputes such as the budget, for instance, or the economy, where two distinct sides are at loggerheads. There are eight or more sides to the immigration conflict that have an interest not consistent with the others. It’s like playing chess in multiple dimensions.

Editor: The Border Security and Economic Opportunity and Immigration Modernization Act of 2013 makes provision for $4.5 billion in funding to control the border. What indicators will be used to determine when the border is secure?

Grunblatt: An effectiveness rate for border control is defined as 90 percent of the number of apprehensions divided by the total number of legal entries. It is hard to see how they can measure this rate precisely. Recently, a delegation at the border watched an elderly woman scale an 18-foot fence, proving that one can find a way if motivated.

Think of the Berlin Wall, which covered only a few miles and was enforced by one of the most totalitarian governments, as compared with a wall along a thousand mile border. While the Berlin Wall was seemingly impermeable, many surmounted it.

Editor: Will border security be coterminous with opening up the availability of applications for Registered Provisional Immigrant status for the 11 million undocumented aliens or must they wait until the border is deemed secure?

Grunblatt: There is actually a very complicated interaction between the two. The undocumented will be able to obtain an interim status of Registered Provisional Immigrant before the goals for border security have been fulfilled. Registered Immigrant status is not permanent residence in the United States – it is a "pre-residence" status that the statute anticipates could last for ten years, the thinking being that these people can convert into permanent resident status after ten years, after every possible attempt has been made to fulfill enforcement benchmarks. There is a very elaborate process for reaching the benchmarks including triggers which must be met within five years. The proposal includes setting up a commission to assess the condition of border-crossings, allocate funds and enter another phase of enforcement, if necessary.

Because there is a certain amount of lead time before the law goes into effect, ten years may not be realistic. It may take 12 or 13 years, given the time required to register and move from one phase to another.

Editor: In terms of changes to the current family and employment-based routes to immigration toward one based on merit, what percentage of green cards will be allocated to persons with advanced degrees in STEM subjects?

Grunblatt: Forty percent of green cards will be allocated to those with advanced degrees in science, technology, engineering and mathematics. This will have a dramatic improvement in the employment base although it is difficult to assess the total impact. Certain STEM graduates with job offers will be exempt altogether from the numerical limitations. It is not just a case of shifting numbers around. The quota limitations will not apply to many, including family members of visa applicants. Under current law, a person qualifying for a green card under any of the preference categories would have his spouse and children included in the count, taking numbers away from other applicants; not so under this law. Under the new system only the one holder of the green card is included in the pool. So, in actuality, the number of green cards issued will increase.

Pulled out of the quota altogether are the so-called first preference categories: multinational managers who are intra-company transferees and foreigners with extraordinary abilities. There will clearly be a wealth of visas available for permanent residence for the so-called STEM professionals. How the math works on that exactly I don’t know, but clearly it will be a very dramatic improvement in the quotas.

Editor: Are these persons not included in the limits under the H-1B quota?

Grunblatt: Not exactly. Not everyone coming to the U.S. who requires an H-1B visa is automatically transitioning to permanent residency. The H-1B is a temporary visa and may often serve as a transition to a green card, but not always. That allocation for US higher degree holders will dramatically increase from 20,000 to 25,000 and will be limited to the STEM categories.

Editor: Please describe the merit-based visa to be issued five years after the bill is enacted that awards points to individuals based on their education, employment and length of stay in the U.S.

Grunblatt: This visa is more generic and is modeled after what is already being done in a number of countries like Canada and the UK. It is in effect for the next fiscal year after the bill is enacted with the system phasing in over five years. It identifies applicants who are likely to be successful and contribute to society. They are rewarded under a point system. Points are given for levels of education and employment and length of residence in the United States – indicators of future success. There is also provision to award visas to professionals who, under the old system, are waiting in line after five years for approval after this merit system kicks in. Undocumented aliens who were granted Registered Provisional Immigrant Status (RPI) will eventually be eligible to participate but not immediately.

Editor: How many merit-based visas will be available in the first year the bill is enacted?

Grunblatt: There will initially be 120,000 visas awarded, with the option to increase this number in five percent increments per year if the unemployment rate is below 8.5 percent. It will be capped at 250,000 visas a year. Given the fact that it will also be used for those who are on the ten-year waiting list who are Registered Provisional Immigrants, it is difficult to figure how substantial the increase will be.

Editor: What provision is being made for agricultural and unskilled workers where it can be shown there is a shortage of such workers in given fields?

Grunblatt: This was one of the most contentious issues. There is a lot of passion on both sides about whether we should be creating a visa category for lesser-skilled employees. For agricultural workers, the so-called "blue card" provision was enacted for farmworkers who have accrued a certain amount of agricultural work in prior years. A revised system was put in place to facilitate the entry of temporary farm workers as well. There was intense negotiation, led by the U.S. Chamber of Commerce and organized labor relating to lesser skilled workers, generally, to come up with a formula to identify shortage areas, to monitor findings, and allow employers to register to participate in the new W visa program after they have made a good faith effort to recruit American workers. The measure provides protection for the workers who are not bound to one employer but can move to other employers similarly registered. It is a complicated compromise addressing the union perspective of protecting workers and the employers’ perspective of trying to make it easy to implement a truly efficient and practical plan. The numbers are relatively modest, starting with 20,000 workers and escalating from there. Many of the advocates are happy this concept has been accepted, and if successful, can be expanded.

Editor: Another provision in this section of the proposal is that these people have to be paid a higher wage than domestic workers, which is surprising in that they are filling in where domestic workers are not available.

Grunblatt: That is one of the consistent themes. When you drill down to the details, the calculations in terms of prevailing wages are higher than the actual prevailing wage. There seems to be this deep suspicion on the part of many that the prevailing wage system doesn’t work. My experience with prevailing wages with the Department of Labor has been quite the opposite; it often doesn’t work because the current system posts very high wages. From 2008 to now, when prevailing wages determinations are regularly used for green card and H-1 cases, the DOL comes up with higher numbers for prevailing wages each year even though there was an economic crisis in 2008. That economic crisis has strangely enough had no impact on the DOL data.

Editor: Will E-Verify now become a national mandate for employers under the proposed law?

Grunblatt: Of all the provisions that are in comprehensive immigration reform, a mandated E-Verify as a national requirement is probably the most certain to remain in its essential form because there is no constituency against it. It would preempt all the state provisions on E-Verify to provide one uniform system.

Editor: What effect will granting broader citizenship have on federal and state budgets?

Grunblatt: I don’t really see that broader citizenship will have a major negative impact on budgets. Historically, the more people that are in the workforce, the more the economy improves. Clearly there can be geographical anomalies, especially in Border States experiencing an influx of foreigners, but generally our economy is better off with a growing younger work force, especially in view of our current aging workforce.

Editor: Why is having a comprehensive immigration compliance plan so important for companies? Will the enactment of this legislation reduce the risk of heavy penalties for non-compliance?

Grunblatt: It will be especially important for companies to have a comprehensive compliance program because with E-Verify and many other provisions in the law, the penalties for failure to comply will be greater. That’s the bad news. The good news is that if it is a national comprehensive policy – it will be part of the public conversation in terms of improving and refining the system. Employers are most concerned about predictability, which a national comprehensive immigration system should give them. Employers should develop a sophisticated immigration compliance plan.

Please email the interviewee at dgrunblatt@proskauer.com with questions about this interview.