A New Day In Immigration?

Thursday, May 23, 2013 - 11:48
Mark D. Koestler

Theodore (Ted) Ruthizer

Mark D. Koestler

The Editor interviews Theodore (Ted) Ruthizer and Mark D. Koestler, Co-Chairs of the Business Immigration Department of Kramer Levin Naftalis & Frankel LLP.

Editor: Please review for our readers the principal immigration reform proposals in the Border Security and Economic Opportunity and Immigration Modernization Act of 2013.

Ruthizer: The main provisions of a very broadly drafted and comprehensive reform proposal would grant legalization to the approximately 11 or 12 million undocumented immigrants who are presently in the United States in exchange for new border security and workplace enforcement provisions. Enormous amounts of money would be allocated to beef up fencing and other border security issues, to provide for more automated entry/departure retrieval information, and ultimately to require every U.S. employer within five years to participate in the E-Verify employment verification system. The bill would also make major changes in the permanent residence system with reconfiguring of the quota, with larger allocations going to skills-based and employer-based immigrants rather than the family-based system. Special procedures would reduce and eventually eliminate the large backlogs in the family and employment categories that we currently have. Brothers and sisters of U.S. citizens would no longer be eligible. There would be new restrictions on the ages of children of U.S. citizens as to their ability to emigrate to the U.S. On the employment side there would be major changes as to who will be counted in the quota, including many of the skills-based immigrants who would be treated more favorably. But on a less positive note, the proposed new restrictions on qualifying for H-1B status would make it far more difficult for U.S. companies to hire the best and brightest applicants by imposing a recruitment requirement. The bill would increase the H-1B quota, but only on a modest basis.

Koestler:  With any benefit, there will be increased enforcement. On the security side the bill authorizes the hiring of 3,500 Customs and Border Protection officers, which goes a long way to satisfy certain groups.

Editor: Do you consider there is a balance between tightened restrictions and  benefits?

Koestler: There is a lot of good as well as bad in this bill. Some of the provisions are very restrictive, and employers will have a tough time adjusting to these new requirements. In answer to the more general question, the drafters tried to be fair and balanced, with the aim of addressing both security and law enforcement concerns. Clearly, there was a great deal of negotiating to provide both sides with provisions they could live with.

Editor: Many of the Republican members’ amendments deal with the strengthening of border security. Which of these are likely to be included finally in the bill?

Koestler: The mandatory E-Verify system, requiring work authorization of every employee, is going to be critical in gaining control of the border. People come here to take jobs, and if you cut off the ability of employers to employ people without authorization, then in theory you’re going to do a good job of preventing future illegal immigration. In essence, legalization and heightened security going hand-in-hand are an easier sell to the public.

Ruthizer: We are likely to see vast amounts of money applied to strengthening the border even though many students of immigration policy consider this to be a waste of money since the border is too long and too porous to be effectively policed. Many Republicans are not persuaded and would like to have even greater sums spent on border control than previously. The main prerequisite for undocumented immigrants to apply for Registered Provisional Immigrant (RPI) status is that border security be in place.  Once RPI status is attained, the bill provides for a ten-year wait before permanent residence can be attained; three years later, citizenship can be granted.

Editor: How is the term “border control” defined in the bill?

Koestler: The bill defines “effective border control” as the ability to achieve and maintain persistent surveillance and an effectiveness rate of 90 percent or higher in a border patrol sector. The percentage rate is calculated by dividing the number of apprehensions and turnbacks by the total number of illegal entries during a fiscal year. It is at least a benchmark unlike any we have seen before.

Editor: Other provisions deal with background checks of undocumented immigrants hoping to attain Registered Provisional Immigrant status. Do you consider such amendments to have merit?

Koestler: I don’t have a problem with those provisions because part of the rationale for the legalization is to bring people out from the shadows. The world has become a different place over the last ten years – it’s important to know who is here and if they have criminal records, which could make them inadmissible. One of the amendments actually takes it a step further in requiring DNA testing to make sure that the person is accurately identified before running a background check.

Editor: What are your views regarding the feasibility of the long-term requirements for illegal immigrants to become citizens, estimated to require at least 13 years?

Ruthizer: I look at this positively – as the political cost to be paid for getting a bipartisan consensus that will result in legislation. Another positive result is that the RPIs will be able to function in a very full and effective way with authorization to work for any and all employers in the United States, and they will have the ability to travel as they wish. The restrictions are twofold: one, they are not able to petition for other family members, which one can do as a permanent resident and as a U.S. citizen; two, there is a certain psychological factor in terms of feeling like a “second-class” citizen. Looking at the positive side, they would have very full and expansive rights, even as RPIs. The ten-year RPI period would give the country a respite to see how registration goes while deferring ultimate eligibility for U.S. citizenship. I would personally prefer a shorter period, but I don’t think it’s going to be intolerable for someone to have to wait this long.

Editor: Please describe the arrangements suggested for STEM graduates and for H-1B professionals.

Koestler: On the nonimmigrant side – the H-1Bs – there are now 20,000 slots held exclusively for U.S. masters degree holders. The bill calls for that number to be increased to 25,000, but limits them to advanced STEM degree holders who have earned their degrees from U.S. universities, ruling out the MBAs and law degree holders, etc. who were formerly entitled to this option. It is also noteworthy that most spouses will now be able to apply for employment authorization. On the immigrant (i.e., permanent residence) side, individuals who have earned a U.S. advanced degree in a STEM field within the five years prior to the filing of a petition will be exempt from the quota.

Ruthizer: A major change in the H-1B portion of the law is that for the very first time in our history there would be a recruitment provision to qualify for H-1B status. The bill creates a recruitment procedure whereby each employer would have to recruit using procedures that meet industry-wide standards and list the job opening on the Department of Labor’s website. Certain employers (with more than 15 percent of their workforce made up of H-1Bs) would be obligated to hire a U.S. applicant who is equally or better qualified than the foreign national  – a stunning reversal from past immigration law. This would work a tremendous hardship on U.S. employers, not only slowing down the process of hiring, but also making for very difficult adjudications. Who is going to be the arbiter of whether there is a U.S. applicant who is equally or better qualified? This is a significant change that has not gotten the attention that it deserves. I fear that the Labor Department will restrict the criteria used by employers in deciding who is an equally or better qualified candidate for an H-1B position.

Editor: Besides STEM graduates, there is a plan to phase in the number of merit-based visas over a five-year period following enactment of the bill. How many more immigrants will be allowed in under this provision?

Ruthizer:  This will replace what we now call the “diversity lottery,” which is limited to 50,000. This provision would be replaced by a points-based system that currently sets a quota of 120,000 immigrants with a cap of 250,000 depending on the unemployment rate. It does not replace the current labor certification requirement as the main route for employment-based permanent residence, but it would add an additional method by which someone could qualify. The point system will be phased in over four years.

Editor: What benefits will ensue to employers once an unambiguous plan for hiring immigrants who have legal status (RPI status) has been adopted? Do you think they will welcome the introduction of the E-Verify program nationwide?

Koestler:  The E-Verify program has been voluntary for a number of years. On the whole, those employers who have signed up for it have been quite satisfied. The earlier growing pains that the system had with misidentifications and no-matches for people who were clearly authorized to work are largely a thing of the past. This will give employers the confidence that they can hire people without having to worry about whether or not they may be here in unlawful status.

Editor: Is there anything further that you would care to add?

Ruthizer: Only that the bill is in a state of flux, and we haven’t seen anything from the House side yet.  The final product may look very different.


Please email the interviewees at truthizer@kramerlevin.com or mkoestler@kramerlevin.com with questions about this interview.