What’s Ahead in Immigration Law in the Next Four Years? - Articles

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Posted by: Christy Gibson on Jan 22, 2013

Steven J. Simerlein *

With his re-election facilitated by nearly three out of every four of about 12.5 million Latino voters last November,[i] President Obama has made it clear that comprehensive immigration reform will be a priority.[ii]  Some of the measures Obama intends to seek include a path to citizenship for some 11 million undocumented foreign nationals living in the United States; improved border security measures; increased penalties for employers who hire undocumented workers, and provisions to ease restrictions on foreign workers.[iii]  These goals reflect calls for reform sounded by various immigrant advocacy groups.[iv]  Some key Republicans, however, oppose a comprehensive package and believe that reform should be accomplished via individual bills.[v]

Immigration reform focusing on younger undocumented foreign nationals    

One of the current attempts at reform started over a decade ago when the DREAM Act (Develop­ment, Relief, and Education for Alien Minors) was first introduced in the Senate in August 2001.[vi] The current iterations of the DREAM Act, introduced in the House[vii] and Senate[viii] in 2009, were defeated in 2010 and 2011. Many reasons have been given for opposition to the DREAM Act, including the perception that the law amounts to amnesty that could encourage chain migration and further unauthorized immigration, or that such legislation should be included as part of a comprehensive immigration reform package. 

Nevertheless, last August, President Obama’s administration implemented a program known as Deferred Action for Childhood Arrivals (“DACA”).  Under this program, the federal government, as a matter of prosecutorial discretion, will not deport foreign nationals who are not enforcement priorities as defined by DACA—many of which track the DREAM Act as to age, education and a lack of serious crimes.  While DACA does not confer residency or citizenship, it offers temporary relief in the form of two-year work permits that may be renewable on a case-by-case basis.

A Republican-sponsored competitor to the DREAM Act, known as the ACHIEVE Act, was introduced in early December 2012.  This proposal has been criticized because, among other things, it would relegate undocumented people to a new category with the oxymoronic moniker of “permanent nonimmigrant status” instead of permanent residency or citizenship.[ix]  Some of the main points of the two approaches may be compared as follows:




  • U.S. entry before age 16
  • U.S. entry before age 14
  • Must be 30 years old or younger
  • Must be under 28 years old
  • Must have no felonies, less than 3 misdemeanors and no major misdemeanors
  • Must have no criminal record and pass a background check
  • Military service or enrollment in some level of education required
  • Must seek a degree in higher education or have military service
  • $465 fee
  • Fee tbd
  • Completion of education or U.S. military service would help move down the path of true citizenship
  • Completion of a higher degree in 6 years or less, or completion of four years of military service would qualify for “permanent nonimmigrant status”


Highly skilled and educated foreign nationals

Some reform efforts have focused on foreign nationals skilled in certain categories of science, technology, engineering and mathe­matics, commonly known as the “STEM” fields. For example, the Congressional Hispanic Caucus has stated that immigration reform must include provisions that provide visas for STEM graduates. Last November, the House passed, over the White House’s objections, the Republican-sponsored STEM Jobs Act of 2012 (H.R. 6429), which would eliminate the diversity lottery green card program and reallocate up to 55,000 green cards a year to new green card pro­grams for foreign graduates of U.S. universities with advanced STEM degrees.[x]  A U.S. employer that wishes to petition for such an individual would have to obtain a labor certification that there are insufficient American workers able, willing, qualified and available for the job.

Two other pending bills introduced last September suggest that some form of STEM-related legislation will make its way into immigration reform.  A Democrat-sponsored bill called “Attracting the Best and Brightest Act of 2012” (H.R. 6412)[xi] would provide up to 50,000 visas under a new visa category for STEM graduates, and among other things, attempts to protect U.S. workers with wage protection provisions.  In the Senate, another Democrat-sponsored bill named the “Benefits to Research and American Innovation through Nationality Statutes (BRAINS) Act of 2012” (S. 3553)[xii] would provide up to 55,000 annual STEM green cards through a 2-year pilot program. The BRAINS Act resembles the STEM Jobs Act in some respects, but differs in others—for example, under the former, students could attend school in the U.S. without having to demonstrate that they have no desire to permanently stay in the U.S.  The BRAINS Act and “Best and Brightest” bill also would not discard the diversity lottery program.

A bi-partisan bill (sponsored by Senators Lamar Alexander (R – TN) and Chris Coons (D – Del.)) called “Sustaining our Most Advanced Researchers and Technology Jobs Act” or SMART Act would allow foreign-born students pursuing masters or doctorates in STEM degrees in the United States to transition directly from a new student visa to a green card, skipping the temporary visa system and providing a tremendous incentive for highly-skilled foreign professionals to remain in America.

Immigration reform for other undocumented foreign nationals

Reforms that could assist undocumented foreign nationals who may not be highly educated or young have been long mired in political morass.  The so-called “legalization” process will be among the more debated topics of reform—including the cut-off date for an immigrant’s arrival into the U.S. to qualify for temporary legal status, and how long they must remain in such status before qualifying for lawful permanent residency—with the opportunity to later naturalize under existing rules.

For example, the Democrat-sponsored “Comprehensive Immigration Reform Act of 2011” has not made it out of committee since its June 2011 introduction.[xiii]  According to the sponsor’s bill summary,[xiv] the proposal includes, inter alia, a registration program called the “Lawful Prospective Immigrant Program” that would require undocumented immigrants in the U.S. as of September 30, 2010 to register with the government, learn English, and pay fines and taxes “on their way to becoming Americans.”  This provision echoes one of several points raised by the American Immigration Lawyers Association, which also advocates, among other things, reforming the family-based and employment-based permanent residency preference systems to reduce or eliminate the lengthy delays that impede family reunification.

On the Republican side, U.S. Senator Marco Rubio—a son of working-class Cuban exiles, and viewed by many as a key figure in that party’s future—recently noted in a January 14, 2013 Wall Street Journal article that for undocumented foreign nationals to have a pathway to some form of permanent legal status in this country, he would have them prove they were in the U.S. for an undefined but lengthy period of time; undergo a background check; pay a fine and any back taxes; and prove they have learned English.  There are signs that some Republican support is coalescing around Mr. Rubio’s ideas.  Indeed, Paul Ryan, the former Republican Vice-Presidential candidate, recently wrote on his Facebook page that “Senator Rubio is exactly right on the need to fix our broken immigration system.  I support the principles he’s outlined….”  Additionally, the White House has made favorable comments concerning Senator Rubio's proposal.

President Obama’s administration has also taken executive-level action in this area.  For example, on March 4, 2013, a new rule will take effect that will allow a foreign national who is the immediate relative of a U.S. citizen, and who is inadmissible solely on the basis of unlawful presence, to apply for a waiver of such inadmissibility while in the U.S. before departing for an immigrant visa interview in his or her country of origin—but only if he or she can show the denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent.[xv]  Commenting on this so-called “provisional waiver,” Secretary of Homeland Security Janet Napolitano stated “[t]his final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa.”[xvi]

The foregoing provides a very brief snapshot of diverse and competing political agendas.  While the results of last November’s election do not guarantee that meaningful immigration reform will actually become a reality, it appears to be the catalyst for renewed efforts by President Obama and the new Congress to make genuine progress toward a deal within the next year.


*Steven J. Simerlein is the founder of Immigration Law Offices of Steven J. Simerlein. He is a graduate of Loyola Law School at Loyola Marymount University in 1991. He may be reached at sjsimerlein@gmail.com or (615) 750-3142.

[i]See “For Latino Groups, Grass-Roots Efforts Paid Off in Higher Number of Voters,” the New York Times, Politics, Nov. 27, 2012, available at http://www.nytimes.com/2012/11/28/us/politics/for-latino-groups-grass-roots-efforts-paid-off-in-higher-number-of-voters.html?_r=0.

[ii]See The Los Angeles Times, “Obama plans push for immigration reform,” Dec. 7, 2012, available at http://articles.latimes.com/2012/dec/07/nation/la-na-immigration-20121208.


[iv]For example, a recent press release by the leaders of national Latino civil rights and labor organizations noted that “[c]omprehensive immigration reform must include a clear roadmap to citizenship for hard working, taxpaying immigrants; a system that builds the strength and unity of working people; keeps families together; guarantees the same rights, obligations, basic fairness for all workers, no matter where they come from; and internal and border law enforcement regimen that focuses on preventing criminals, drug cartels and other bad actors from entering the U.S. or engaging in criminal activities.”See “Latino Leaders Announce Civic Engagement Campaign to Win Comprehensive Immigration Reform in 2013,” December 12, 2012, available at http://www.seiu.org/2012/12/latino-leaders-announce-civic-engagement-campaign.php.

[v]See Huffington Post Latino Politics, “Immigration Reform's Latino Leaders Warn 2014 'May Not Look Too Pretty' For Opponents,” Dec. 12, 2012, available at http://www.huffingtonpost.com/2012/12/12/immigration-reform-latino-2014_n_2287598.html.

[vi]Senate Bill 1291, introduced on August 1, 2011 by Senators Dick Durbin and Orrin Hatch.  Earlier, similar legislation under different monikers include the “Immigrant Children’s Educational Advancement and Dropout Prevention Act of 2001” (H.R. 1582) and the “Student Adjustment Act of 2001” (H.R. 1918).

[ix]The president-elect of the American Immigration Lawyers Association opined that “the Achieve Act’s fundamental shortcoming is that it grants temporary work permits to a portion of the young undocumented people living in the U.S., then attempts to funnel them through an existing, deeply flawed immigration system as a path to citizenship.”  See “Achieve Act, House Bill Leave Immigration Reform Activists Unimpressed,” posted Nov. 30, 2011 at Huffington Post Latino Politics, available at http://www.huffingtonpost.com/2012/11/30/achieve-act-john-kyl_n_2218182.html.