Will Trump Breathe New Life Into Immigration Legislation?

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By Laura D. Francis

It’s been virtually impossible to move immigration legislation through Congress in recent years.But some prominent lawmakers are already introducing immigration bills taking aim at two areas of interest to President Donald Trump: high-skill visas and electronic employment verification. Does having a Republican-controlled Congress and White House mean these bills actually have a shot at becoming law?

Chances of passage are “higher than in the past,” but it’s still going to be difficult, Stephen Yale-Loehr, of counsel with Miller Mayer in Ithaca, N.Y., told Bloomberg BNA Jan. 25. “Introducing the bill is easy,” said Yale-Loehr, also a professor of immigration law practice at Cornell Law School. “Getting it across the finish line to enactment is hard.”

This is Trump’s test as president, New Jersey attorney John Miano told Bloomberg BNA Jan. 26. The prospects for immigration legislation depend on whether the president can “rally the troops” behind a particular measure, Miano said.

Splits on immigration policy don’t necessarily fall along party lines, so it’s just as likely that a Republican could hold up an immigration bill as a Democrat, Miano said. To push legislation that he wants, Trump will have to make sure he gets all Republicans on board at the very least, he said.

Legislative Package Likely

Some kind of package deal is likely, though congressional Republicans have made clear they aren’t interested in a comprehensive bill that runs the gamut of immigration issues. The first item of business could be legislation addressing the status of young, undocumented immigrants who came to the U.S. as children.

The immigrants currently are protected from deportation and allowed to work under the deferred action for childhood arrivals program, launched in 2012 by the Obama administration. Trump has vowed to terminate the program, though since the election he has indicated that he wants to work out a deal for the 750,000-plus immigrants covered by DACA.

Bipartisan legislation ( H.R. 496/S. 128) pending in both the House and the Senate would provide three years of temporary protection and work authorization to DACA-covered immigrants while Congress works out something more permanent. But what would that look like?

There could be a package deal providing green cards to the young immigrants, known as “dreamers,” in exchange for mandatory use of the E-Verify electronic employment verification system, Mark Krikorian, executive director of the Center for Immigration Studies, told Bloomberg BNA Jan. 26. Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) already has introduced a mandatory E-Verify bill ( S. 179), although the chances of passage of that particular bill appear slim.

Mandatory E-Verify

For one, the bill seeks to reauthorize E-Verify permanently, but that would have to be done by its April 28 expiration, Yale-Loehr said. Congress will already have a lot on its plate early in the year and reauthorization of E-Verify is tied to three other immigration programs, he said: the EB-5 immigrant investor program, the Conrad 30 program for foreign physicians, and the special immigrant religious worker visa for nonministerial workers.

Congress also is considering major changes to the EB-5 program and it’s “hard to believe” that lawmakers would be able to overhaul that and E-Verify in just three months, Yale-Loehr said. Not only that, but Grassley’s E-Verify bill would provide a phase-in of only one year, something businesses are sure to object to, he said.

But if Trump took executive action to encourage greater use of E-Verify, that could provide an incentive for Congress to act, Krikorian said. If enough employers voluntarily enroll in the program, it will be easier for the president to tell Congress that making it mandatory won’t really change the landscape, he said.

“It has to be phased in,” and the agriculture industry—which relies heavily on undocumented labor—likely needs extra time, Krikorian said. So changes to the H-2A temporary agricultural visa program also may need to be included in the package, he said.

Dreamer Green Cards?

Krikorian, whose organization supports lower immigration levels, said it’s “preferable” for Congress to package dreamer green cards with the elimination of green cards in other areas, particularly the diversity visa lottery and visas for the siblings of U.S. citizens. Granting permanent legal status to dreamers is “an appropriate act of mercy” on behalf of this group, considering their circumstances, he said. But it shouldn’t provide an avenue for even more immigration based on that act, he said.

If Trump does terminate DACA, Congress is likely to act, and quickly, Krikorian said. But “allowing the thing to run on autopilot takes away the urgency, especially for the Democrats, to do anything about it,” he said.

Republicans’ prior position on DACA also indicates a willingness to enact legislation addressing the population’s immigration status, Greg Siskind, a founding partner at the immigration law firm Siskind Susser PC in Memphis, Tenn., told Bloomberg BNA Jan. 26. Republicans’ "beef” with the program wasn’t the concept of providing relief but that it was done via executive action instead of legislation, he said.

Getting “a congressional blessing on the program” eliminates any separation-of-powers issues, he said.

High-Skill Immigration

Also likely on tap are changes to high-skill immigration programs.

Trump spoke on the campaign trail about overhauling the H-1B program, which provides temporary visas to high-skilled workers. The program has come under scrutiny because of high-profile cases of U.S. information technology workers being laid off and replaced with H-1B workers at Southern California Edison and Walt Disney World.

But Trump’s H-1B platform, which included raising the required salary and additional protections for U.S. workers, later disappeared from his campaign website.

A bill ( H.R. 170) introduced by Rep. Darrell Issa (R-Calif.) takes direct aim at U.S. worker displacement. The measure would close a loophole that allows employers that rely heavily on H-1B workers to avoid the usual requirement that they attest U.S. workers aren’t being displaced.

Rep. Zoe Lofgren (D-Calif.), the ranking Democrat on the House Judiciary Subcommittee on Immigration and Border Security, also has introduced a bill ( H.R. 670) to do the same thing. But that bill also would restructure the H-1B program’s salary requirements—pushing them upward—and would allocate the visas according to salary offered. Currently, the total 85,000 H-1B visas available per year are distributed according to a random lottery.

The Lofgren bill also would eliminate the per-country cap on employment-based green cards, a proposal also contained in a bill ( H.R. 392) introduced by Rep. Jason Chaffetz (R-Utah). A prior version of Chaffetz’s bill passed the House in 2011.

And there’s the reintroduction of legislation by Grassley and Sen. Richard Durbin (D-Ill.) that would overhaul both the H-1B program and the L-1 program for employees of multinational companies who temporarily work for those companies in the U.S. Announced Jan. 19, that measure would require a “good faith effort” to recruit U.S. workers before hiring an H-1B worker and, like the Lofgren bill, reallocate H-1B visas rather than keep the lottery. Companies with 50 percent or more employees on H-1B visas wouldn’t be allowed any more, and it would explicitly prohibit replacing U.S. workers with H-1B workers.

The legislation shows “bipartisan thinking” in terms of overhauling the H-1B program, but “the devil is always in the details,” Yale-Loehr said. There’s “sure to be push-back” from the business community, he said.

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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