The Prospects For Immigration Reform Legislation

Tuesday, February 25, 2014 - 11:45

The Editor interviews Bo Cooper, Partner in the Washington, DC office of Fragomen, Del Rey, Bernsen & Loewy, LLP.

Editor: President Obama in the State of the Union address urged the House to heed the call of independent economists who say that immigration reform will grow our economy and shrink our deficit by $1 trillion in the next two decades. He urged that immigration reform be done this year. How effective do you believe the President’s entreaty will be in swaying reluctant Republicans in the House? What effect will it have on public opinion?

Cooper: It was heartening to see the President choose to emphasize economic growth and the positive economic impact of immigration. Jobs and the economy are top of mind throughout the country, and it is right to focus on the economic imperative for immigration reform. Independent economists, the Congressional Budget Office, and a host of other analysts have consistently reached the conclusion that fixing our poorly functioning and out-of-date immigration reform stands to boost the economy, and that delaying reform is costing us.

Editor: Recently, the House leadership released a paper at the party’s Maryland retreat urging House members to adopt “Standards for Legislative Reform.” What was the reaction of many, if not the majority, of Republican members?

Cooper: There certainly was a mixed reaction, particularly among House Republicans. On the positive side – if you believe, as I do, that it is irresponsible to let an issue this important to our economy and to our national identity float along unaddressed year after year – there are some Representatives who want to move forward on immigration reform because it’s the right policy choice; some who need to move on immigration reform for their own electoral interests; and some who want to move forward because the Republican party needs to be more positive on immigration for the sake of the party’s long-term strength, particularly at the level of presidential elections. There were strong lessons on this point from the Romney candidacy in the 2012 election. On the other hand – and this seems pretty clearly to be the upper hand, at the moment – there are some Representatives who strongly oppose moving on immigration in any form, and a larger number who would likely favor moving ahead on immigration as a policy matter, but don’t believe that now, in a midterm election year, is the right time. This group considers it more important to focus on political messages that unify the Republican party. Right now, that’s the health care law.

Editor: What is the likelihood that a majority of House members will reach agreement on some major tenets of reform?

Cooper: The likelihood of widespread substantive agreement on policy choices is really very good. In the end, I don’t think that is the sticking point. The House Republican Standards were general, but they outlined a promising framework for compromise and agreement. Obviously, the details of an issue as complex as immigration matter a lot, but the Standards focused on the right things: effective border security, better measures to attract bright minds from around the world, a sensible resolution for the undocumented, special measures for those who were brought to this country as children, and a reliable system to ensure that only those with permission can work in this country. As a policy matter, it’s not hard to find the target for an effective compromise. Look, for example, at the issue that’s been such a big sticking point in this debate for years: the 11 million undocumented. House Republicans have been emphatic that they would not support a special pathway to citizenship. This is a main reason for the huge opposition among House Republicans to the comprehensive immigration reform bill that the Senate passed last summer. However, there’s a building consensus that if a reform bill had a careful and responsible program to legalize the undocumented, that could gain broad support even if it didn’t provide a special pathway to citizenship. The problem right now is not policy, it’s politics. 

Editor: Some of the measures that came out of the Standards were also those in the Senate bill. Do you see a coincidence between the thinking in the House and that of the Senate?

Cooper: Yes. There are lots of ways in which the two chambers would be prepared to move forward together. For example, in the high-skilled employment area, both chambers recognize that the shortage of H-1B visas and the backlog of green cards for professionals are self-defeating and must be addressed. There are some important differences in the ways that each chamber would fix the problem, with some of the choices more effective than others. And there are still some critical improvements that need to be made to the high-skilled immigration provisions that are out there. But this example – making sure that this country can win the global competition for talent – is one where both Houses of Congress, and both parties, have commonly recognized the key needs for reform.

Editor: Speaker Boehner recently hired Senator McCain’s former chief of staff. What do you think that augurs?

Cooper: It’s kind of funny: usually you don’t have to look as far as congressional staff hiring decisions to find predictors of major legislative objectives. But that hire has been viewed as a very important sign that the House Republican leadership is serious about moving forward on immigration reform. This person has a history of trying to push immigration reform, and she is someone with a significant history of reaching across the aisle and of working effectively with advocates for reform.

Editor: Please describe the border bill passed by the House Homeland Security Committee and compare it to the like proposal in the Senate bill.

Cooper: That bill passed out of the Homeland Security Committee unanimously; it’s the only immigration bill on the House side that passed with bipartisan support. Both parties agree that any new immigration legislation must strengthen border enforcement, but exactly how to accomplish that is a different question. The Senate’s bill focused on putting even more infrastructure in place, while the House border security bill is based more on implementing triggers to gauge operational control of the border.

Editor: Additionally, the House Judiciary Committee passed four immigration bills, Subcomittee Chairman Trey Gowdy’s Safe Act, Rep. Lamar Smith’s E-Verify bill, Chairman Bob Goodlatte’s Agriculture Guestworker Act and Rep. Darrell Issa’s Skills Visa Act. Please describe the purpose of these bills and the likelihood of their passage by the entire House.

Cooper: One thing that’s clear is that none of those bills is likely to pass in its current form. They were designed at the committee level to pass with Republican votes only. Those bills each will need to be adjusted through the floor process in the House if they are to pass. For instance, if the Safe Act is going to gain enough Democratic support to pass, it would have to change significantly. The agricultural worker bill would likewise have to change significantly in order to pass. Its stakeholders take issue with the bill’s cap structure, with its wage structure, and with the absence of portability provisions that would allow workers to move from one employer to another. A final example is the Skills Visa Act. The basic professional worker provisions of that bill reflect ideas that have wide support within both parties. But that bill also included a provision to eliminate the Diversity Visa program and would eliminate certain avenues for family-based immigration. Those are steps that would see a fair amount of Democratic support as part of a larger package. But to include them in a freestanding bill on high-skilled immigration is anathema to most Democrats. So those bills, which were designed to pass committee with Republican support alone, would all need to change in order to pass the entire House, where they will need some number of Democratic votes.

Editor: The content of the KIDS Act is not unlike that of the DREAM Act that failed to pass the House over a year ago. Chairman Goodlatte has agreed to introduce this bill. Are there other similar bills that are likely to be introduced?

Cooper: The KIDS Act is a critical piece because it addresses undocumented immigrants who were brought to this country when they were young and through no fault of their own. The idea that this category of people should have a path to citizenship has been advanced for years in the DREAM Act, and with bipartisan support at many points in time, but Congress has never actually passed it into law. But now it is a principle you saw reflected in the House Republican leadership reform standards. We’re also likely to see at some point a bill dealing with the undocumented, without which Democratic support is unlikely. You are likely to see a bill that would create a basis for legalization but not a special path to citizenship. There is also likely to be a bill dealing with those working at the lower skill levels.  This is another sector of national labor needs where reform is badly needed, but the Senate provisions on lesser-skilled workers have some very important limitations, such as numeric limits that are unrealistic and out of alignment with what the economy needs.

Editor: What are the top issues for employers needing access to foreign talent at high skill levels under the current House bill? Will Representative Issa’s proposal meet these needs?

Cooper: The current House bill would address the shortage of H-1B visas pretty effectively. It would modernize the supply of visas available to employers by making a lot more visas available each year. That’s a very important strength of the Skills Visa Act, and the need for that kind of change is going to be on full display on April 1. That’s when new visas become available for next year. On that day, probably about twice as many applications will be made as there are visas to go around.  So lots of employers will be stuck without visas for about half of their recruits. 

As strong as it is in some ways, though, there are two areas in which the Skills Visa Act needs major adjustment if it is to be workable. Its wage requirements and green card provisions need important further work. Green cards are an essential part of most employers’ strategies for getting the talent they need when they cannot fill positions adequately from the U.S. talent pool. To attract experts from other countries, to recruit and retain them, typically you need to be able to provide them with permanent residence.  If you’re a highly sought-after professional, you’re going to have choices, and you’ll often want to go where you can reside permanently and where you can bring your family.  And having permanent residence can make a big difference in lots of important aspects of daily life – being able to get loans and buy houses, to have access to in-state tuition for your kids when they go to college, to know what your standing is over the long term in the country you’ve chosen to take your skills to.

Our laws today are falling far short in the task of providing that stability. Backlogs can go on for years, and they’ve just been growing. For professionals from India, for example, the backlog for a green card is over ten and a half years. That’s nearly tripled from the four-year waits we saw in 2007. The Skills Visa Act goes some way toward addressing that problem by adding new visas for those who have received advanced degrees in science, technology, engineering, or math from a U.S. university. It also adds modest additional numbers of visas for professionals and those with advanced degrees. But these additions to the green card supply don’t go nearly far enough. Continued, multi-year backlogs would be guaranteed.

With respect to the wage issue, both the House and the Senate side would cause extreme wage hikes for those who come here on H-1B visas and others. Those wage hikes would be 25 percent or more, for lots of jobs. It is hard to see the reason for such drastic increases, or for a rule that would require foreign workers to be paid more – sometimes 25 percent more – than their American counterparts who are doing the same work. Think of the choices that leaves for employers: pay your foreign professionals far more; raise everyone’s wages by that much; or simply not use the H-1B program, and move jobs to countries where you do have access to the talent you need. I think that there are solutions that would enable Congress to establish reasonable and workable new wage requirements that would avoid these anomalies. 

Editor: What is the differential today, roughly?

Cooper: The rules today are that you must pay your H-1B workers either the prevailing wage as determined by the Department of Labor or the actual wage that you pay to your workers doing that work in that area – whichever of those two levels is higher.

Editor: What issues do employers of higher-skilled people face in the absence of some kind of reform?

Cooper: The basic rule is you have to be able to get the talent you need to do the jobs that need to be done. There is broad agreement in the employment community that it is important to take the steps needed to improve the skills and education of the U.S. workforce, but that where there is a gap between what you need and what you can get in this country, you must be able to turn to expertise from overseas. Where that’s not possible, I think you will see jobs start to move to where that expertise can be obtained.

Editor:  What should we make of Speaker Boehner’s comments, less than a week after the release of the principles gave new hope for immigration reform, that the issue was not one that the House would likely move forward on?

Cooper: That certainly reversed what seemed like new momentum. The Speaker really emphasized the widespread distrust among House Republicans that the President can be relied upon to enforce the law. That’s a little puzzling in the immigration context, since this administration has out-deported any previous administration, of either party. But I think that the strain in the relationship between Republicans in the House and the administration goes beyond just immigration. And with respect to immigration reform, I think the real driving factor for the moment is the political strategy to keep focus on party differences over health care, rather than to take up an issue as divisive as immigration can be. So for right now, I think all bets are off. But I also don’t think that it is a good idea to buy into the pronouncement that immigration reform is dead for the year. Things change. With Congress, it’s never wise to think that you can see with certainty more than two or three months into the future.

 

Please email the interviewee at bcooper@fragomen.com with questions about this interview.