By Charles Foster
I learned the hard way that it is difficult to make predictions as to when Congress will finally enact broad- based, comprehensive immigration reform.
Having served as a senior immigration policy adviser for President George W. Bush in 2000 and 2004, I felt confident that, with President Bush’s leadership, Congress would enact comprehensive immigration reform President Bush was elected supporting what he called a “grand bargain” with Mexico to reform our immigration system. When Mexico’s newly-elected President Vicente Fox joined President Bush at the White House for a state visit on Sept. 5, 2001, it appeared that all of the stars were aligned for Congress to do so. Five days later, as the planes tragically crashed into the World Trade Center, the Pentagon and the field in Pennsylvania, all prospects for immigration reform came to an end.
Upon his re-election in 2004, President Bush delayed pursuing comprehensive immigration reform in favor of security reform. In 2008, President Barack Obama, with Democratic majorities, first pursued health care and financial reform. Thus, both presidents missed narrow windows for passing immigration reform for failure to prioritize over other legislative priorities. Following the 2012 re-election of President Obama, there was a bipartisan effort in the Senate to pass comprehensive immigration reform, resulting in the passage of Senate Bill 744. But, House Speaker John Boehner, R-Ohio, was never even able to get a majority of his party’s caucus to support a scaled-down version of immigration reform that did not include a pathway to U.S. citizenship.
One thing is certain, the 2016 presidential election is unlike any prior presidential election in that the two candidates represent polar extremes in terms of their approach toward U.S. immigration policy. Senator Hillary Clinton, D-N.Y., voted for the Comprehensive Immigration Reform Act of 2006. Donald Trump has focused almost entirely on enforcement, specifically building a beautiful wall that Mexico will pay for, banning all Muslims or those from certain predominantly Muslim countries, repealing birthright citizenship and removing with a new “deportation force” an estimated 11.4 million undocumented aliens from the U.S. within 18 months. Although, he also said he would let the “good ones” back in and more recently has implied he would let them stay in some form.
So what major immigration law changes can we expect in 2017? If Hillary Clinton is elected president, we will have the best possibility since 2000 of enacting broad-based comprehensive immigration reform. Secretary Clinton has clearly pledged to introduce an immigration reform bill in the first 100 days of her presidency that will likely be modeled on Senate Bill 744 that passed the U.S. Senate on June 27, 2013, with the leadership of the “Gang of 8,” including former presidential candidate Senator Marco Rubio, R-Fla. Immigration reform has the support of the U.S. Chamber of Commerce, the Greater Houston Partnership and most business organizations, unions and college presidents.
While we can’t yet know every specific now, the general parameters of comprehensive immigration reform have been well established. If passed, the biggest and most controversial provision would be the “pathway to citizenship” for approximately 11.4 million undocumented aliens, of which about 2 million reside in Texas. For the first time, they would be eligible to live in dignity without fear and compete for jobs at the prevailing wage. That would raise not only their standards but also the working standards of U.S. workers. Workers who would no longer have to compete for jobs at lower wages, given that undocumented workers are more willing to work off the books for a lower wage. It would cover undocumented aliens without a serious criminal record and who have resided in the U.S. with an undocumented status prior to a fixed date, most likely around Jan. 1, 2013.
This was seen as a sufficient number of years back in order to prevent the legislation from being a magnet for those wanting to enter the U.S. with hopes of coverage. This would provide for interim temporary status that could be renewed every several years and require payment of back taxes, some fine or penalty, and English language and civics courses. After 10 years or so, in order to prevent applicants from “cutting in line” ahead of foreign nationals already in the legal process of qualifying, beneficiaries would have the right to apply directly for Lawful Permanent Residency or “green card” status and, five years later, U.S. citizenship. Republican House and Senate leadership may well be ready to support the same without the “pathway to citizenship” to get the issue off of the political table. Very important for Texas business, the legislation also will likely increase visa numbers for the H-1B professional nonimmigrant visa program, which has been the primary entry point into the U.S. and basis for talented graduates of U.S. universities to remain in the U.S. Equally important, any new legislation would include a functioning temporary worker program for semiprofessional and nonprofessional workers, the lack of which has significantly contributed to large-scale illegal immigration.
With legal options for the large undocumented workforce and a reformed work visa system, Congress also will require mandatory E-Verify to confirm that all new hires have valid Social Security numbers and, hopefully, will also modify the independent contractor exemption that has been widely abused by employers to avoid the requirement to verify the status of all new job applicants since the enactment of the Immigration and Control Act of 1986. There also will be funding for increased border enforcement, including expanding the border wall to cover additional appropriate spots; plus, more funding for smart enforcement including drones, land monitors and aerial vehicles.
An immediate reauthorization is needed of the EB-5 regional center program, which sunsets on Sept. 30, and has funded more than $500 million in real estate and other Texas projects. Given broad-based support for the program on both sides of the aisle, it is likely that the program will be extended as part of a continuing resolution until after the election—with major reforms in 2017, including new integrity measures, an increase in the minimum investment amount, Targeted Economic Areas restrictions and, hopefully, increased visa numbers, given growing backlogs under the annual quota for qualified Chinese applicants.
These are only some of the most likely changes that will impact our country, and particularly Texas, in 2017.
Charles C. Foster is the chairman of Foster LLP. He is also the founding chairman of the State Bar Committee on Immigration & Nationality Law and Immigration Policy Adviser to Presidents George W. Bush and Barack Obama.
Reprinted with permission from the October 2016 edition of the TEXAS LAWYER© 2016 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or email@example.com.