Immigration Proposal

Immigration Proposal


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On Sunday, January 27, 2013, a bi-partisan group of U.S. Senators agreed on a framework for immigration reform for the approximately 11 million undocumented immigrants in the U.S. The group includes Senators Schumer (D-NY), McCain (R-AZ), Graham (R-SC), Menendez (D-NJ), Rubio (R-FL), Bennet (D-CO), and Flake (R-AZ). The proposal: 1) provides a path to citizenship for undocumented immigrants, 2) reforms the employment visa process to retain foreign nationals with advanced U.S. degrees, 3) emphasizes employment verification, and 4) enables lower skilled workers to obtain employment, increased labor protections, and a path to permanent residency.

The discussion below provides a general summary of the proposal and observations on the proposal’s impact.

Citizenship

Undocumented immigrants in the U.S. will gain a path to citizenship. In exchange, there will be stronger measures against individuals entering illegally or staying past their visa expiration date.

1.  There will be an increase in resources for Border Patrol personnel, training, and technology.

2.  There will be increased surveillance using unmanned drones and technology at ports of entry.

3.  There will be further prohibitions against the inappropriate use of force and racial profiling.

4.  An entry-exit system will be completed to track whether temporary visa holders have left the country.

5.  Undocumented immigrants in the U.S. will have to register with the government, pass a background check, and pay fines or back taxes. In exchange, they will earn a probationary status to live and work legally in the U.S. However, individuals with serious criminal histories or those who pose threats to national security will not be eligible and will face deportation. Those on probationary status will not have access to federal public benefits.

6.  A commission will be created to review security along the Southwest Border.

7.  Security measures must be completed before any immigrants on probationary status will qualify for permanent residency (green card). Possibly, the legislation may not credit the time in probationary status towards the residency requirements needed to apply for a green card.

8.  Those on probationary status will also not receive their green card until applications already in the system, as of the day of the law’s enactment, are cleared. This way, those who entered or stayed illegally will not receive permanent status before someone who followed the immigration laws. However, there will be exceptions for those who entered the county as minor children and those who work in the agricultural industry.

Employment Visas

The proposal outlines some broad goals and one specific step for increasing employment visas for highly skilled foreign workers:

1.  More must be done to bring in the best and brightest from other countries, including reducing times when families are split apart.

2.  Characteristics (perhaps traits and skills) that will build the U.S. economy should be emphasized. Backlogs in family and employment visa categories should be reduced to provide an incentive for individuals to enter the U.S. legally.

3.  Immigrants who receive a Master’s or PhD degree in science, technology, math, or engineering from an American university will be eligible for a green card.

Employment Verification

A new mandatory employment verification system will be developed, one where employers will be held accountable for knowingly hiring undocumented workers, and where undocumented workers will find it difficult to falsify documents to secure employment. The new system will strive to:

1.  Provide a fast and reliable method to confirm whether new hires are authorized to work.

2.  Rely on non-forgeable documents to prove an individual’s identity and work authorization, and subsequently reduce identity theft or hiring of undocumented workers.

3.  Provide procedural safe guards, prevent identity theft, and protect individuals’ due process rights.

Lower Skilled Workers

The proposal seeks to prevent future illegal immigration by providing a way for lower skilled workers to gain lawful employment, increasing employment law protections, and creating a path towards a green card. Specifically, the proposal seeks to:

1.  Provide employers the ability to hire lower skilled workers after demonstrating that U.S. workers are unavailable or unwilling to fill those jobs.

2.  Meet the needs of the agricultural industry, specifically the dairy industry, when U.S. workers are not available to fill those positions.

3.  Regulate the number of entrants based on the strength of the U.S. economy.

4.  Develop strong labor protections for workers.

5.  Provide a long-term process for workers to obtain a green card.

Observations

There is no indication of how much these reforms and expenditures will cost or how the expenses will be covered. Those details will likely be discussed and evaluated as the legislation is drafted. Since the proposal suggests the use of unmanned drones and greater personnel and technology to assist in border control, the costs should be considerable.

The proposal incorporates the concept behind the DREAM Act, to provide protections and a legitimate immigration path for undocumented immigrants who entered the county as minor children. The thrust behind the DREAM Act is that minor children did not have the intent to violate immigration law and should not be prevented from integrating in the U.S.  However, the proposal does not expressly mention the concept of a start-up visa, which would allow innovative foreign entrepreneurs to start U.S. companies after securing funding from U.S. investors.

It is likely that not all undocumented immigrants will come forward. Those with significant criminal histories, or those who are perceived as threats to national security, will not receive probationary status and may face deportation. Perhaps decreasing the overall number of undocumented immigrants will allow immigration enforcement officials to concentrate their efforts on deporting the remaining individuals, deemed threats or unsuitable for immigration.

Highly skilled professionals in math, science, engineering, and technology will benefit if the proposed legislation provides eligibility for a green card based on higher education in the U.S., rather than having to rely on sponsorship by an employer. One question to track further is whether the new legislation will build in protections for U.S. workers who are also in those fields. Given how much business leaders have complained about a shortage of highly skilled workers, there may be no need to worry about U.S. workers being displaced.

It will be interesting to see how the new law will try to regulate the flow of lower skilled workers during economic downturns. Regardless of all the enhanced procedures, if economic opportunities are better in the U.S., incentives will remain for individuals to seek work and for businesses to hire them on a lower wage and tax basis.

Lastly, employers will be heavily impacted by this plan. One clear benefit is greater access to qualified workers, in higher or lower skilled positions. However, clearer still is the administrative impact and increased regulation. Employers may have to learn a new employment verification method, record results in a mandatory verification system, fix any errors or follow up on mismatches, and finally, comply with enhanced anti-discrimination and recordkeeping requirements.

More information will be posted on the proposed legislation as it becomes available.

Author: Attorney Nilesh P. Patel

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