1. FEBRUARY 25, 2013 IMMIGRATION CLIENT ALERT
This Alert provides only general
information and should not be
relied upon as legal advice. This
IMMIGRATION REFORM
Alert may be considered attorney
advertising under court and bar
rules in certain jurisdictions. DISCUSSIONS UNDERWAY IN
WASHINGTON
For more information, contact your
Patton Boggs LLP attorney or the In the weeks since President Obama and the Senate’s bipartisan Gang of Eight
authors listed below. both announced their set of principles for comprehensive immigration reform, a
heightened debate of how reform will come to fruition has taken hold in the
KRISTIN WELLS
202.457.6422 Senate, House of Representatives and White House. On February 5, the House
kwells@pattonboggs.com
Judiciary Committee held a full committee hearing focused on reforms needed to
SHAUOL ASLAN bring high skilled workers into the U.S. and the problems that resulted from the
202.457.6095 1986 Immigration Reform and Control Act (IRCA). On February 12, the
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President referred to immigration reform as a priority in his State of the Union
address and later held meetings with key stakeholders in the reform effort. On
February 13, the Senate Judiciary Committee held its full committee hearing on
ABU DHABI comprehensive immigration reform, largely focused on the testimony of
ANCHORAGE Homeland Security Secretary Janet Napolitano.
DALLAS
DENVER Below we discuss four key issues raised in these early hearings: the path to
DOHA
legalization for undocumented residents, border security, visas for highly skilled
NEW JERSEY
NEW YORK
immigrants, and visas for agriculture workers.
RIYADH
WASHINGTON DC PATH TO LEGALIZATION
The House hearing identified a notable hurdle in the road to achieve
comprehensive immigration reform – a path to citizenship for the 11 million
undocumented who are already present in the United States. Committee
Democrats – and witness Julian Castro, Mayor of San Antonio, Texas – followed
the President and the Senate’s Gang of Eight principles by emphasizing the need
for a legalization path that would result in citizenship for those who meet certain
conditions. Some Republicans on the Judiciary Committee supported legalization
for the undocumented, but were critical of providing a path to citizenship for
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2. these residents in the future. In particular, former immigration attorney and freshman Representative Raúl Labrador
(R-ID) said that during his law practice working with undocumented people, “Not very many people told me ‘I want
to be a citizen.’” He went on to say, “If we can find a solution that is short of a pathway to citizenship but better than
just kicking 12 million people out, why is that not a good solution?”
Since the hearing, House Majority Leader Eric Cantor (R-VA) has offered his support for a path to citizenship for
people brought to the U.S. illegally as children. In his Tea Party response to the State of the Union, Senator Rand Paul
(R-KY) suggested the Republican party welcome hard workers who want to become American. Some House and
Senate Republicans have suggested they may be able to support a path to citizenship with the following requirements:
a secured border; stringent standards and penalties for immigrants; enactment of a system to prevent people from
overstaying on legal visas; lengthy waits for undocumented applicants at “get at the back of the line;” control of illegal
hiring; and creation of an effective temporary worker program. Rep. Labrador seemed to change his tone after the
hearing when he said compromise might be possible with the development of a more modern immigration system.
However, Judiciary Committee Chairman Bob Goodlatte (R-VA) has said he does not support legalization that leads
to citizenship, so this issue is far from resolved.
HIGH SKILLED VISAS
Politicians on both sides of the aisle seem to agree on the need for more available visas and an easier, welcoming
immigration system for highly skilled immigrants, especially entrepreneurs and those working in the STEM areas of
science, technology, engineering and mathematics. In the State of the Union address, President Obama said, “Our
economy is stronger when we harness the talents and ingenuity of striving, hopeful immigrants,” noting that “real
reform means fixing the legal immigration system to . . . attract the highly-skilled entrepreneurs and engineers that will
help create jobs and grow our economy.”
The House Judiciary Committee devoted much of its first hearing to the need for high skilled visas. Members quizzed
witnesses about the easy availability of visas for highly skilled immigrants in other Western nations and discussed the
need for reform of the H1-B program that effectively caps the number of high skilled workers that can enter the
country and is restrictive to spouses of such immigrant workers. The Gang of Eight’s immigration reform principles
say “our immigration proposal will award a green card to immigrants who have received a PhD or Master’s degree in
[STEM fields] from an American university. It makes no sense to educate the world’s future innovators and
entrepreneurs only to ultimately force them to leave our country at the moment they are most able to contribute to
our economy.”
H1-B visas are available for 85,000 immigrants a year filling high skilled positions that require “specialized knowledge”
in their fields. Currently, the 65,000 H-1B visas available to high skilled workers in the private sector are in heavy
demand by U.S. technology companies seeking to attract workers from abroad to fill technical jobs that they are
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3. unable to fill due to a lack of qualified American workers. Of the 85, 000 total, only 20,000 are reserved for workers
with graduate degrees from U.S. universities (an unlimited number of H-1Bs are available for high skilled workers in
qualifying academic or research institutions). Since the H-1B visa was established in 1990, applications have nearly
always exceeded the number of visas offered, including recent years. Often the H-1B cap is reached within days of the
filing window’s opening, requiring a lottery to determine which applications will even be adjudicated.
High skilled visas were also a central topic at the Senate Judiciary hearing. Senator Sheldon Whitehouse (D-RI)
expressed his support for the bipartisan “Immigration Innovation (I2) Act of 2013” (S. 169), which addresses the
shortage of visas for highly skilled workers and is sponsored by prominent Senators Orrin Hatch (R-UT), Amy
Klobuchar (D-MN), Chris Coons (D-DE), and Marco Rubio (R-FL). The bill is designed to attract and retain highly
skilled immigrants by expanding the number of available H-1B visas and improving the ability of high skilled foreign
workers to change employers. This bill would immediately increase the standard H1-B visa cap from 65,000 to
115,000, and implement a market-based escalator that could raise the cap further based on market demand. The bill
further uncaps the number of H-1Bs available to graduates with a U.S. advance degree (currently 20,000) and makes
green cards available to foreign students who graduate from U.S. universities with science, technology, engineering
and mathematics (STEM) degrees. Under the bill, a proposed increase in fees for H-1Bs and certain green cards
would generate approximately $300 million a year for investment in domestic STEM education and U.S. worker
retraining programs.
Senator Whitehouse noted that “encouraging highly-skilled immigrants, engineers, and entrepreneurs to stay, and to
locate in this country is good for American jobs, and is good for the American economy, rather than competing and
displacing American jobs and the American economy.” Secretary Napolitano responded that “the case for high-
skilled, and -- and STEM educated workers is extraordinarily strong. We know we need more of them in the country.
They compliment, not substitute for American workers. They become job creators. They add to economic growth.
Some of our nation’s most successful companies over the last decade, even through the recession were companies
that were either started by, or run by those who came here originally as immigrants. So it is a global talent pool that we
want to have in the United States. We want to be a magnet for those types of individuals, because in the end they are
job creators.”
Hearing witness Steve Case, former Chairman of AOL, noted “We must draw the best and brightest from around the
world and develop our own through education.” He said that while China, Australia and Canada have visa programs
to attract talented workers in the STEM fields, the United States is forcing one-third of its STEM graduates to leave
the U.S. once the obtain their degrees. This month, STEM Visa Act of 2013, which aims to promote innovation,
investment and research through visa reform, was introduced by Rep. Darrell Issa as H.R. 459 in the House and as
S. 303 introduced by Senator David Vitter (R-LA) in the Senate.
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4. AGRICULTURAL WORKERS
The House and Senate hearings also displayed Members’ and Senators’ strong concerns for the farmers in their
districts and states, who are facing severe challenges in workforce management in the agricultural sector. In the House
hearing, California members on both sides of the aisle argued for reforming the H-2A program, which brings
temporary agricultural workers to the U.S. California Representative Zoe Lofgren (D) stated, “We have 2 million
migrant farm workers and 80 or 90 percent of them are here without their papers. They are providing a vital service to
the United States. You could do e-Verify and find out they’re not properly here, and American agriculture would
collapse. So that’s not going to be helpful. What we need to do is provide a system that will actually meet our needs in
our economy.” In the Senate, Chairman Patrick Leahy (D-VT) queried Secretary Napolitano on how to reform this
visa program to assist Vermont dairy farmers who cannot find Americans willing to do farm work. H-2A visas are
seasonal but dairy farmers want to be able to use these visas year round for dairy work. Responding to both Chairman
Leahy and Senator Al Franken (D-MN) (who raised the same concern on behalf of dairy farmers in Minnesota),
Secretary Napolitano said that the Obama Administration supports H-2A visa reform and would like to see statutory
changes that would fix the problems faced by dairy farmers.
Proposals for reform of the H-2A visa have included changes to the requirements placed on employers, such as
flexibility with Department of Labor wage rates, easier visa approvals and changes to the benefits they must pay to
their workers. In addition to access to a legal visa, workers have wanted portability with their visas so they can work
for other employers, and coverage under minimum wage and other worker protections. Some growers have concerns
that legalization with portability or citizenship will cause them to lose current or recruited workers. On February 26,
2013, the House Subcommittee on Immigration will be holding a hearing on “Agricultural Labor Visa Programs” to
examine these problems in more detail.
BORDER SECURITY
With Secretary Napolitano as the Administration’s witness, much of the Senate Judiciary hearing focused on border
security issues. She noted that the enforcement environment is dramatically different from 1986 when IRCA was
passed. At that time there were only 3,000 border patrol agents; now there are 21,000. At that time there was a short
chain link fence on part of the border; now there is 655 miles of secure fence infrastructure. In 1986, the INS
removed 25,000 undocumented people from the U.S.; in 2012, 409,000 undocumented people were removed. “These
efforts must be sustained and built upon,” she said, “and we have to get at the demand for illegal immigration, and we
have to deal with legal migration into the country.”
Some Senators remained critical of the Administration’s border security efforts. Senator Jeff Flake (R-AZ) emphasized
the need for certification of a secure border before a legal path to citizenship could be implemented, and he urged the
agency to resume its operational control methods of border security on the southern border. Other senators raised
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5. concerns about visa overstays, the entry-exit system and worksite enforcement. Senator John Cornyn (R-TX) also
emphasized these concerns; “I believe that the reason that immigration reform failed in 2007 is because the American
people don’t actually believe that Congress intends to follow through on important measures like border security,
work site enforcement, visa overstays and the like,” he said. Senator Jeff Sessions (R-AL) added, “Madam Secretary, I
truly believe had this administration done a better job of enforcement, been more effective in moving forward with a
lawful system of immigration, you would be in a much stronger position with the American people to ask for a more
broad solution to the problem.” Senator Chuck Grassley (R-IA) asked the Secretary to provide an inventory of actions
that can be taken on the border that have not already been accomplished.
NEXT
Last week, parts of the White House plan for immigration reform were leaked, causing great ire and upset on Capitol
Hill. Legislators are concerned that such leaks could prevent or destroy the careful bipartisan balance they are trying to
strike. Sen. Rubio called the proposals “dead on arrival.” Whether any of the Administration’s proposals do gain
traction in introduced legislation remains to be seen. In addition, the U.S. Chamber of Commerce and the AFL-CIO
announced an agreement between business and labor to guide talks on low skilled workers. While agreements
between these two sectors will be critical to a political compromise, the depth of this agreement and its usefulness in
this current stage of the immigration debate are yet to be seen. In the future weeks, hearings, negotiations and debates
will continue to highlight the political strengths and pitfalls of these reform ideas and will affect the public discussion
of how the U.S. will reform its immigration system.
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