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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Monday, January 28, 2013

Immigration Debate Gears Up

Wall Street Journal
By Laura Meckler
January 28, 2013

Millions of illegal immigrants would be given a path to citizenship under provisions of an immigration overhaul fashioned by a bipartisan group of senators, an opening shot in what promises to be a fight in Congress this year.

The legislative framework, to be released Monday, also would add federal agents and equipment to strengthen the borders and tighten work rules to ensure employers hire legally.

The unveiling comes before President Barack Obama plans to set out his own, similar principles in a speech Tuesday in Las Vegas. Mr. Obama repeatedly has said revamping the immigration system is one of his top priorities, while Republicans—smarting from the overwhelming Hispanic support of Mr. Obama in November's election—also have identified the issue as of major importance.

Still, the Senate proposal could face stiff opposition in the Republican-controlled House. Many Republicans oppose any path to legal status for illegal immigrants, viewing it as a reward for lawbreaking. Other Republicans have signaled they are comfortable with a legal status short of citizenship, but immigration advocates view that as an unacceptable second-class status.

Under the Senate framework, most people in the country illegally now could qualify for legal status and work permits, provided they meet certain standards including a background check and paying back taxes. They eventually could qualify for citizenship, but most would have to wait until certain border security improvements were met and a new system put in place for tracking whether people who enter the country legally on temporary visas leave on time.

With powerful liberal and conservative senators on board, the plan has the potential to attract senators of both parties. The framework describes the path toward citizenship for the 11 million people in the U.S. illegally as "tough but fair."

The agreement provides a variety of other provisions. Among them: alleviating the backlog of people waiting to immigrate legally; awarding green cards to those who earn doctorates from U.S. universities in science, technology, engineering or math; stiff fines and possible criminal penalties for employers that fail to verify workers' legal status; and creation of a program to fill low-skilled jobs that employers cannot get Americans to take.

"I'm impressed with my colleagues on both sides of the aisle over their desire to meet in the middle. We can't pass it without both Democrats and Republicans," Sen. Charles Schumer (D., N.Y.), a member of the group and chairman of the Senate Judiciary immigration subcommittee, told reporters Sunday.

Tricky issues have yet to be resolved, including how to assess whether the border-security benchmarks have been met, how to alleviate the backlog of people waiting for legal visas and how many people would be admitted under the new temporary-worker program.

The provisions don't address some smaller and potentially contentious aspects proposed for an overhaul, such as whether gay and lesbian Americans would have the right to sponsor their noncitizen spouses or partners for citizenship. Also unclear is whether immigrants with temporary legal status, but not citizenship, could quality for health-insurance subsidies under the 2010 health overhaul law.

"It's definitely a breakthrough to get a bipartisan group around a set of principles that would deal with every element of our broken immigration system," Sen. Lindsey Graham (R., S.C.), a member of the group, said Friday. But he cautioned that there are difficult negotiations ahead: "There's a big difference between a set of principles and a detailed piece of legislation."

The bipartisan group of senators also includes Democrats Dick Durbin of Illinois and Robert Menendez of New Jersey, as well as Republicans John McCain of Arizona and Marco Rubio of Florida. They have met five times since the November election, alternating between the offices of Sens. Schumer and McCain.

The group hopes to have a bill by March that could move through the Senate by August. That would allow House consideration and negotiations between the two chambers during the fall. It wasn't clear how detailed President Obama would be when he lays out his own ideas in his Tuesday speech.

In recent years, with the U.S. economy weak, illegal immigration has slowed to a trickle. But many in Congress, particularly Republicans, worry that after legislation is passed, there will be a fresh wave of illegal crossings as the economy rebounds.

To combat that, the framework proposes increased technology, infrastructure and personnel, including more unmanned aerial vehicles, to apprehend unauthorized entrants. It calls for stronger prohibitions against racial profiling and more training of border patrol agents.

Most of the citizenship provisions would have to await improvements on the border. Meanwhile, people in the U.S. illegally would be required to register with the government, pass a background check, pay a fine and any back taxes, and then would be able to gain probationary legal status. Those with criminal records or who pose a threat to the U.S. would be subject to deportation.

Those brought to the U.S. as children or agricultural workers would face a quicker path to citizenship.  But most others wouldn't be able to apply until it was determined that the new border measures and visa-check system were in place.

It wasn't clear how it would be determined that those provisions had been met. A Rubio aide said Mr. Rubio would like to see "operational control of the border," a standard some advocates fear would be both hard to define and never be met. A Schumer aide said the provisions should be measured by empirical measures, such as whether the promised number of new agents were in place.

Once the enforcement measures are complete, people with probationary status could earn permanent legal residence, which can lead to citizenship, if they pay taxes, learn English and meet other requirements. They wouldn't be able to earn a green card until all those waiting on the day the legislation is passed get theirs.

That meets a GOP demand that people who came to the U.S. illegally don't earn special treatment. But to address Democratic concerns that the line is prohibitively long, the framework calls for reducing those backlogs.

The outline also provides for businesses to hire new immigrants for low-skill jobs if they can show they were unsuccessful in recruiting Americans. Those who do well eventually would be able to earn green cards.

Left unresolved is how many workers would be allowed in each year. The framework says only that the number would be higher when the economy is creating jobs and lower when it isn't.

Businesses generally want more workers let in to deepen the pool of potential workers, while some labor unions want to limit entries for fear of depressing wages and opportunities for American workers. Officials with the U.S. Chamber of Commerce have been meeting with leaders of the AFL-CIO and the Service Employees International Union to work out a common position.

"The biggest concern has always been that when workers are brought in, it lowers wages for everybody," said Eliseo Medina, secretary-treasurer of the Service Employees International Union.

Randy Johnson, lead negotiator for the Chamber of Commerce, said Friday that the existing number of visas needs to go up. "If an employer goes through a tight process and can't find an American worker, they ought to have access to a temporary worker program that works," he said.

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