Immigration Reform Legislation

Immigration Reform Legislation - A Labyrinth of Issues

Washington is embroiled in a contentious and critical debate over immigration reform. The debate to this point has been particularly heated on Capitol Hill, as well as cities across the country. The big question is whether various proposals will lead to actual comprehensive immigration reform.

What Do We Do with 12 Million Undocumented Foreign Nationals?

Much of the debate is focused on the presence of an estimated 12 million undocumented foreign nationals within the U.S. Equally important is how to stem the flow of illegal immigrants from crossing our border.

With respect to a solution for undocumented foreign nationals already in the U.S., there is a fundamental conflict between conscious and constituents. As Senator Leahy noted, some want to "turn the light back on in the Statute of Liberty", while at the same time protect our citizens and border.

Congressmen recognize that many undocumented workers fill important jobs and they do not want them to live in the shadows, but they do not want to reward them for being in the U.S. illegally. Congressman recognize the contributions some undocumented workers make to various labor industries, but they are uncomfortable with providing them access to benefits when other foreign nationals played by the rules to obtain such benefits. Decision makers are struggling with the dilemma of legalizing their status without feeling like they "got away" with something and were not punished. Perhaps more importantly, many in Washington want to ensure the finalized solution does not encourage other foreign nationals to illegally enter the U.S. in hopes of similar treatment.

Guest Worker Program

At the heart of this debate are questions surrounding the efficacy and viability of some type of guest worker program. Amnesty has become dirty word in Washington today, and any type of guest worker program or earned legalization is seen by many as a form of amnesty.

The details discussed during sessions include whether a guest worker program is fair and whether undocumented foreign nationals should be able to legalize their status within the U.S. or back home. There is also a large concern that legalizing undocumented workers will place too much stress on the Department of Homeland Security and cause delays in processing times. Many believe some type of guest worker program will be included in passed legislation, but how it will be implemented is still a point of contention on both sides of the aisle.

Border Security

The second major area of this debate is finding a solution to thwart the influx of illegal foreign nationals into the U.S. The majority of this issue surrounds the U.S.-Mexican border where the ability to stop incoming illegal Mexicans currently does not exist.

There are current proposals for adding a huge fence and adding some additional 200 border agents. Many believe that while the passion of immigration reform surrounds undocumented foreign nationals already in the U.S., the pragmatic end product should include far better answers for border security and control.

Potential Unforeseen Consequences in Proposed Legislation

While much of the debate is focused on the estimated 12 million undocumented foreign nationals in the U.S. at this time, there are proposed provisions that could affect many foreign nationals and U.S. entities.

Some of the more interesting proposed provisions include:

• Criminalizing being in the United States without status, including those who may inadvertently fall out of status due to technical infractions;
• Criminalizing those who support and give aid to foreign nationals in the U.S. who do not have status, including churches, hospitals, non-profit agencies, individuals etc.
• Limits/Restricts Administrative and Judicial Review of some matters
• Calls for the allowance of indefinite detention of some foreign nationals in proceedings;
• Allows state and local police to start enforcing immigration laws;
• Raises the H-1B cap to potentially 115,000 or 200,000.

These provisions would certainly extend beyond illegal and undocumented workers in the western United States.

Long Delays in Processing

One potential negative of implementing a guest worker program is the stress it will put on the Department of Homeland Security. Implementing a guest worker program alone could force immigration processing times to spiral out of control.

Processing times for various matters are at three year lows at various service centers, but a flood of new guest worker applications could impede this progress. While an H-1B for a new hire may take 2-3 months now, it could take 5-7 months if a service center is overworked. This could delay an initial H-1B hire from starting or force the expenditure of an additional $1,000 for premium processing.

Foreign Nationals Inadvertently Become Felons

Proposed criminalization provisions could designate foreign nationals as felons who mistakenly find themselves technically without status in the U.S. If someone in H-1B status is let go or leaves a job, once the final day of work arrives, s/he is no longer in lawful status in the U.S. and may be designated a felon. In fact, any technical infraction that temporarily renders someone out of status, or simply providing aid and support to a relative or friend who is out of status, could be designated as a felony.

Andrew M. Wilson is an immigration attorney practicing in New York. He is a member of the Serotte Reich & Wilson, LLP firm, and can be reached at awilson@srwlawyers.com .