Imigration Reform Is Dead? How Did That Happen?

In less than a week, Republican House leadership went from revealing their principles for immigration reform to acknowledging that there was very little chance of passing reform this year.  Indeed, a few days after the proposal was revealed at a GOP legislative retreat, reform proponent Paul Ryan stated that the passage of reform was "clearly in doubt."  This was followed by House Speaker John Boehner declaring that passage of reform legislation would be "difficult" days later.

So what happened?  How did the fortunes of immigration reform legislation change so rapidly in sch a short period of time?

The Process Took Too Long

Strike while the iron is hot.  That's the conventional wisdom.  Use the momentum and advantage while you have it.

After the 2012 presidential election, the passage of immigration reform looked all but certain.  Even conservative talk show hosts, like Sean Hannity, stated that they had rethought immigration reform and supported a pathway to citizenship.

But, immigration reform was not the top priority either for the Administration or Congress.  Rather, the nation first had to face the crisis created by the so-called "fiscal cliff."

Once the crisis was settled, it became a race between a bipartisan committee from the House, which had been working on immigration reform behind the scenes since 2009, and the Senate "Gang of Eight."  According to The Hill, President Obama and Senator Chuck Schumer were not happy with concessions that House Democrats had made, and intervened with House Democrat Luis Gutierrez to slow the progress of the House bill in order to allow the Gang of Eight's bill to pass the Senate first, and thus shape the immigration debate.Once the Senate bill passed, momentum for the House bill died over the summer.

The Hill continues, reporting that two Texas Republicans, John Carter and Sam Johnson, were ready to introduce a bill in the House.  However, they received no commitment from Speaker Boehner.  Washington was then bogged down in the autumn, first by the situation in Syria, and then with the Government shut-down orchestrated by GOP tea party members.

By time Congress passed a new budget, opponents of immigration reform began to strengthen.  Tea party supporters were boosted within GOP ranks by their ability to shut down the Government.  By mid-November, Boehner was saying that there were not enough legislative days left in 2013 to address immigration reform.  Boehner ruled out going into a Conference Committee where the Senate bill would set the agenda.  Indeed, there was a fear among House Republicans that even if the House passed smaller bills on immigration reform that the Senate would use that as an opportunity to inject principles from the Senate bill into the resulting legislation.

When it appeared that the wheels were coming off of the Obamacare band wagon, House Republicans saw no reason to push for immigration reform in 2013.  Indeed, the momentum had shifted in Washington, placing Democrats on the defensive.

Republicans Don't Trust Obama

One theme that emerged from the demise of immigration reform last week was that House Republicans just don't trust President Obama.  The main issue is that of border security.  GOP leader had tried to sell reform to rank and file party members by promising that any pathway to legal status for undocumented aliens already present in the country would be tied to greater border security.  When conservative House Republicans voiced resistance to the leadership's principles, it prompted Boehner to say, "Listen, there’s widespread doubt about whether this administration can be trusted to enforce our laws."

If the President was trying to earn such trust, he had done himself no favors in the State of the Union Address.  There, he was seen as throwing the down the gauntlet, threatening unilateral executive action if Congress would not bend to his will in passing certain legislation in the remainder of the President's term.  Indeed, the President's reputation for acting unilaterally, and in the eyes of any conservatives unconstitutionally, on immigration issues is well-earned.  When Congress did not pass the DREAM Act, for example, the President responded by implementing his Deferred Action for Childhood Arrivals program unilaterally.  House Republicans fear that even if reform legislation included border security requirements, this President will simply refuse to enforce them.

Republicans Are Now Focused on the Mid-Term Elections

As I wrote last week, the Republicans are now very optimistic of winning control of both houses of Congress in the mid-term elections.  Democratic control of the Senate is in jeopardy, in part due to the continued unpopularity of Obamacare.  In the House, many GOP members are from "safe" districts, where the real electoral threat comes not from a Democratic challenger in the general election, but from a more conservative challenger in the primary election.

Many conservatives see supporting any immigration reform that includes any type of "amnesty" as political suicide.  Not only will it alienate more conservative voters, but it would only eventually add to the number of voters who support Democrats, as the undocumented aliens are overwhelmingly Latino.  Should the undocumented eventually become citizens, then the number of Latino voters will rise.  Given the huge majorities which Latinos gave the President in 2012, conservatives believe that adding so many Latino voters to the rolls will relegate the Republicans to a permanent minority party.

Democrats Couldn't Care Less if Immigration Reform Actually Passes

Meanwhile, Democrats are in no hurry to have immigration reform actually become law.  The reason is that it continues to give Democrats a political issue to bash Republicans over the head with in national elections.  Democrats can easily be seen as supporting immigration reform by pushing for legislation.  But, if the Republicans continue to oppose reform, Democrats can point the finger at the GOP and continue to use the issue to garner Latino and Asian support.

So Long as Republicans Have Legislative Power, Immigration Reform Remains in Doubt

The last time that immigration reform came close to passage, it was in 2006, when Republican George Bush was president, and the Republicans controlled both houses of Congress.  The Comprehensive Immigration Reform Act of 2006 included a guest worker program and a pathway to citizenship.  If Republicans really intended to pass reform, they had the political power to do so.  However, reform died in December of 2006, in the lame duck session, as many Republicans who has previously supported reform turned on the bill, in the wake of the Republicans 2006 electoral defeat.

Similar to the current political climate, conservatives who opposed reform gained momentum and worked to block passage.

Will Some Kind of Immigration Reform Pass this Year?

 There are certainly some optimists left in Washington on immigration reform.  Chuck Schumer has proposed, for example, enacting the legislation now, but delaying implementation until 2017.  The conventional wisdom, however, is that the prospects of passage is less than 50-50.  Considering that the 2016 presidential elections are on the horizon, if reform does not pass this year, it may be doubtful that it will pass until a new person is sworn in as Commander-in-Chief.  At this point, neither party appears eager to push for a quick resolution.

William J. Kovatch, Jr.
for an appointment, call (703) 837-8832
wkovatch@kovatchlegalservices.com

GOP Proposes Immigration Reform; Now What?

Last week, Republican leaders from the House of Representatives circulated a one page set of principles on immigration reform among rank and file members at a retreat in Cambridge, Massachusetts.  According to Time Magazine, the proposal included a pathway to legalization for undocumented aliens already present in the United States, provided border protection measures are taken and the undocumented meet certain criteria.

Time quotes that GOP leaders proposed that undocumented aliens "could live here legally and without fear in the U.S., but only if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families."  The Republicans principles did not include a pathway to citizenship, which the Washington Post reports may be an area where immigration reform advocates are willing to compromise.

Despite the support from Republican House leaders, whether immigration reform will even happen is "in doubt," according to Representative Paul Ryan.  Ryan has been the target of the ire of conservative talk show hosts for his support of immigration reform.  Ryan appeared on ABC's "This Week" on Sunday, stating, "Security first, no amnesty, then we might be able to get somewhere."  When asked specifically if Congress would pass an immigration reform bill this year, Ryan responded, "I really don't know the answer to that question. That's clearly in doubt."

After Mitt Romney's loss in the 2012 Presidential elections, the conventional wisdom was that the Republicans had to support some degree of immigration reform that included the granting of legal status to the undocumented aliens already present in the country if they were to remain competitive in national elections.  This was due to the overwhelming majorities that Latino and Asian voters gave the President.  What happened since then?

In truth, House Republicans are focused on the 2014 mid-term Congressional elections.  Most House Republicans come from "safe" districts, where the election of a Republican is almost certain.  Support for any immigration reform that can be seen as amnesty would more likely result in a credible challenge in the primaries, and not in the election of a Democrat.

Add to this situation the President's recent troubles with the cornerstone of his Administration: Obamacare.  With the program becoming increasingly unpopular, there is a real possibility that the Republicans may be able to take the Senate in the mid-term elections too.

Last week, talk show host Rush Limbaugh questioned why the Republicans would push for any immigration reform that includes so-called "amnesty."  Citing an article from the Politico, Limbaugh noted that Democrat may even be conceding control of the House to the Republicans in order to concentrate electoral resources on saving the Senate.  Limbaugh speculated that if the Republicans were poised to have such electoral success in 2014, the only way to derail that success now is if the party pushed for immigration reform.  Specifically, Limbaugh claimed that if Republicans supported "amnesty," that would likely cause faithful Republican voters to stay home on election day.

With this political climate, then, the passage of immigration reform, which seemed to be a sure thing in late 2012, early 2013, is not a sure thing.  Those who may have been waiting to see if reform would pass instead of acting on legal possibilities now may be well advised to re-think that strategy.

To discuss what possibilities may be available under the law, call now for an appointment.

William J. Kovatch, Jr.
(703) 837-8832
wkovatch@kovatchlegalservices.com

Immigration Reform Heads to the Republican Controlled House of Representatives

Immigration reform passed the Senate last week with a vote of 68-32.  The issue now heads to the House of Representatives, where it's future is less certain.

While almost 70 Senators voted for the reform bill, the fact remains that only 14, or less than one-third, of Republican Senators voted for it.

Unlike the Senate, the House is controlled by Republicans.  Speaker of the House, John Boehner, is not likely to bring proposed legislation to the floor for a vote unless a majority of the House Republicans are in favor of it.  Although Republicans are in favor of certain reform measures, there is one issue that Republicans may strongly contest.

Namely, the pathway to citizenship for those already present in the country may turn out to be a measure House Republicans won't swallow.  In a way, Republicans may be guided by the politics of self-preservation.  On the one hand, PBS reports that most House Republicans are in safe districts.  This means that if those Republicans vote in favor of a pathway to citizenship, they are more likely to face a primary challenge from a conservative candidate angry over immigration reform than a strong Democratic challenge in the November 2014 elections.

Then, there is the issue of what would happen to the future electoral chances of the Republican Party if millions of Latinos already present in the United States become full citizens with voting rights.  Although it is a mistake to consider Latinos as a single, unified group (Cubans tend to vote differently than Mexicans, for example), in generally Latinos tend to vote Democratic.  In the last election, over two-thirds of the Latino vote went to President Obama.  Republicans will be very reluctant to endanger their future electoral success by voting for a pathway to citizenship.

That is not to say that Republicans oppose immigration reform.  Jeb Bush and Clint Bolick published an op-ed piece in the Wall Street Journal making a Republican case for immigration reform.  Their emphasis was on reducing family based immigration in favor of more employment based immigration.  The two viewed this as the House of Representative's opportunity to make changes to the Senate proposal, more in line with conservative values.  The House, for example, can insist on greater border control measures.  Regarding the path to citizenship, Bush and Bolick would make the civics test for naturalization more challenging.

In the end, Bush and Bolick state that Republicans have more in common with immigrants, such as "beliefs in hard work, enterprise, family, education, patriotism and faith."  Bush and Bolick urge Republicans to stop being an obstacle to reform, "and instead point the way toward the solution."

Of course, there may be a way to push for reform, with providing some political cover for House Republicans.  This is through the use of the discharge petition.  If 218 House members sign a discharge petition, then the legislation would come to the floor of the House for a vote despite opposition of the House leadership.   This is a rare occurrence, as it requires a few members of the majority party to join forces with the minority party in order to bypass House leadership.  In normal circumstances, this would mean reprisals against the those members of the majority party who side with the minority party.

A discharge petition, however, may be exactly what House Republican leaders need to allow immigration reform to come to a vote without making it look like their fingerprints are on it.  That is, if there is pressure from Republican leaders outside of the House to bring the measure to the floor, the House leadership could work behind the scenes to encourage those Republicans in the House who support the measure to sign the discharge petition and force the measure to come to the floor.  Then, the House leadership and the majority of the House Republicans could go back to their districts and claim that they had nothing to do with immigration reform and even voted against it.

This is just one vision of how things could proceed in the House.  As of this moment, it is just speculation.  Steve Benen of MSNBC reports that the House already has a bipartison group working on its own version of immigration reform legislation.  If nothing else, immigration reform may continue to dominate Washington politics for a few months before we know what the outcome will be.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Details of the Proposed Immigration Reform

The Gang of Eight introduced its proposal for immigration reform in the Senate today.  The bill is 844 pages long, and will take time to read, digest and analyze.  However, one organization, the Migration Policy Institute, has published a detailed comparison of the proposals introduced in this bill, and the proposals made in 2006 and 2007.

The heart of the proposal appears to be to require the Department of Homeland Security to create strategies to provide greater border security, and to implement those strategies, in exchange for permitting those who are present in the United States without legal status to be given provisional status, which could eventually lead to citizenship.

First, Homeland Security must submit strategies for protecting the southern border within six months of the passage of the bill.  Once the strategies have been submitted to Congress, then a new status, Registered Provisional Immigrant ("RPI"), is created.  The Secretary of Homeland Security must then certify to Congress and the President that the plans have been submitted, implemented and substantially operational or complete.  A mandatory employer verification system (E-Verify) and an electronic exit system at air and sea ports must also be implemented.  Once all of these conditions have been met, then those with RPI status may apply for permanent residency.

RPI status must be renewed every six months.  Eligible aliens must have been continually present in the United States from December 31, 2011.  Those with RPI status must learn English, and pay all taxess before they can adjust to permanent residency.  However, certain deportees who were present before December 31, 2011 may apply for re-entry under RPI status, if they were not deported for criminal reasons and other criteria are met.

To received RPI status, there will be a $500 fee at filing, and a $500 fee upon renewal.  To adjust to permanent residency, there will be a $1,000 fine, plus a processing fee ($400 fine for agricultural workers). 

It should be stressed that this is just a proposal.  It is subject to mark-up and amendment in the Senate.  It must also pass the House of Representatives and be signed by the President before it becomes law.  Thus, changes should be expected.  More details on the proposal shall follow.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Movement on Immigration Reform Expected After Easter

The President predicted that immigration reform could pass by the end of the summer.  The President expected an immigration reform bill to be ready after the Easter break, and New York Senator Chuck Schumer confirmed his belief that a birpartisan group of Senators called the Group of Eight was "90 percent" done with drafting the bill.

The bill is expected to include stronger border security measures, a pathway to citizenship for undocumented aliens already in the country, an expansion of visas available to high-tech workers, and some form of a guest worker program.  Homeland Security Secretary Janet Napolitano stated her expectation that any new reforms would be fee-based so that the costs would not be borne by the taxpayers.  Addressing those aliens present in the country without legal status, Napolitano stated, "They need to get right with the law -- they did break the law."

One big issue that could slow the pace of reform was disagreement over the guest worker program.  Despite this issue, the President stated that he saw "enormous progress over the last month and a half" between Republicans and Democrats, adding that both sides "have been very serious about the negotiations."

The Christian Science Monitor has also reported that border security could be an issue that impedes progress on reform.

Regarding the pace of reform, some Republicans Senators have urged Senator Patrick Leahy, Chiar of the Committee on the Judiciary, not to rush reform without proper debate.  Leahy responded that he intended "to proceed to comprehensive immigration reform with all deliberate speed."

Senator John McCain, however, a member of the Group of Eight, would not commit to a timetable, noting that there were still major points of contention.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

President to Press for Immigration Reform Early in the Next Congress

According to the Los Angeles Times, President Obama is preparing to press for comprehensive immigration early in the next Congress.  The plan calls for an all-out blitz as soon as talks over the country's fiscal problems dies down.  Reportedly, the campaign to press for immigration reform will focus on convincing Americans that reform will provide benefits in such areas as education, health care, business and safety.

The exact details of the President's proposal are still evolving.  Reportedly, the proposal will include a pathway to citizenship for those undocumented aliens already present in the United States, increased border security, increased penalties for employers who hire aliens unauthorized to work in the United States, and increased opportunities to hire foreign workers.

According to the Times, some Democrats believe that there is a narrow window to press for reform.  The closer it gets to the next congressional elections, the more likely members of Congress will be reluctant to vote in favor of a bill that has political risks.

Republicans, however, appear to be in favor of slower approach, tackling one issue at a time before addressing whether there should be a pathway to citizenship.  Florida Senator Marco Rubio has stated, "Portions of immigration reform can be dealt with quicker than others."  Congress, for example, could first approach expanding opportunities for science and technology workers and addressing undocumented aliens who were brought here as children before the more controversial subjects.

Recently, however, a bill to expand the number of visas available to science, technology, engineering and math (STEM) workers stalled in the Senate after being passed by the House.  The fight over the bill highlighted a key difference of opinions between Republicans and Democrats over the shape of reform.  Specifically, Republicans appear to believe that in order for there to be more visas available for STEM workers, over visa categories have to be eliminated.  Democrats, by contrast, do not view reform as a zero-sum game, seeing no need to eliminate some visas in order to expand the availability of others.

One key concern for Republicans is whether they would be sacrificing their political future by supporting immigration reform now.  Specifically, conservatives, such as Rush Limbaugh, have argued that if Republicans support a pathway to citizenship, they would simply be expanding the number of Democratic voters in the future.  This is a fear that can be seen by careful analysis of the Achieve Act currently pending  in the Senate.

The Achieve Act, sponsored by Republicans Kaye Bailey Hutchison, John Kyl and John McCain, is the Republicans' response to the DREAM Act.  It would create a way for some undocumented aliens brought to this country as children to have legal status.  However, the bill would create a non-immigrant visa for such aliens, which would not itself lead to citizenship.  Thus, beneficiaries under the Achieve Act would not automatically be on the path to obtain the right to vote.

While this appears to be the most positive atmosphere for immigration reform since President Bush attempted to press for a guest worker program, the battle will not be easy.  Competing interests will need to be addressed, and in some instances overcome, if the press for immigration reform is to be successful.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

President Promises to Press for Comprehensive Immigration Reform

In his first press conference since the November 6th election, President Obama promised to press for comprehensive immigration reform in early 2013.  According to the President, immigration reform will include strengthening the borders, greater penalties for employers who hire undocumented aliens, and a pathway to citizenship for those already present in the United States illegally.

The last attempt at comprehensive immigration reform took place during the Bush Administration.  The Bush proposal also included a pathway to citizenship.  However, the legislative package failed to pass Congress.

In 2010, Congress came close to passing the DREAM Act, which would have given legal status to young people who were brought the United States as children and who have attended school in the United States or were honorably discharged from the U.S. military.  The DREAM Act died in a Senate filibuster.  However, the President announced a program to grant some form of relief to those who would have qualified for benefits under the DREAM Act through his Deferred Action for Childhood Arrivals program.  The deferred action program, however, does not lead to permanent residency.

Click here to read more on the President's statements concerning immigration reform.

By: William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com

Is Immigration Reform Around the Corner?

One of the emerging themes from the aftermath of the 2012 presidential election is the notion that the Republican Party must evolve to appeal to demographics other than caucasians.  More specifically, analysts say that Romney lost the Latino vote by a margin of 70% to 30%.  This is the widest margin since Bob Dole lost the White House in 1996.  Latinos are the largest growing ethnic group.  With the changing American electorate, many are saying that the Republicans must attract more Latino voters to be competitive in future elections.

The first step, according to conservative talk show host Sean Hannity, is "to get rid of the immigration issue altogether."Hannity surprised many in his audience by announcing that he has "evolved" on the issue of immigration reform.  Hannity urged that securing the borders had to be the top priority, but that there ought to be a "pathway to citizenship" for those who are already here and who do not have a criminal record.

Hannity is not the only conservative voicing a willingness to address immigration reform.  Speaker of the House of Representatives , John Boehner, stated, "A comprehensive approach is long overdue, and I'm confident that the president, myself, others can find the common ground to take care of this issue once and for all."

On the campaign trail, Republican Florida Senator, Marco Rubio, addressing the issue of young people brought to this country as children, stated that the United States need to find a solution, more permanent than the President's Deferred Action for Childhood Arrivals program, that was "humanitarian," and "that solves their problem but that doesn’t encourage illegal immigration in the future."

Given these statements by leading conservatives, there appears to be a possibility that immigration reform will be on the agenda for the next Congress.  The big question is what that reform will look like.

In one of the rare instances where Republican candidate Mitt Romney addressed immigration during the Fall campaign, he stated that graduates with degrees in math and science should "get a green card stapled to their diploma."  In September, a bill written by the Chairman of the House Judiciary Committee Lamar Smith, came up for a vote.  The bill would have increased the number of visas made available for graduates with advanced degrees in science and technology, but would have also eliminated the diversity visa program.  Representative Michael McCaul from Texas likewise mentions ending the diversity lottery while increasing the number of visas for graduates with advanced math and science degrees when discussing immigration reform.

The time may very well be right for comprehensive immigration reform.  But exactly what shape that reform will take, and whether it will include a pathway to citizenship for the undocumented aliens currently in the United States remains to be seen.

By:  William J. Kovatch, Jr.
(703) 837-8832
info@kovatchimmigrationlaw.com