UPDATES ON UPCOMING IMMIGRATION MEASURES

The House will be considering both prosecutorial discretion and reforming the per-country limits on employment and family-based visas in the coming days.

US Immigration and Customs Enforcement: Priorities and the Rule of Law

An oversight hearing will be held by the House Judiciary Subcommittee in order to hold an oversight hearing entitled “U.S. Immigration and Customs Enforcement: Priorities and the Rule of Law.” This is the second time the subcommittee has focused on DHS and ICE’s recently announced policies on prosecutorial discretion. There are five witnesses who are testifying before the subcommittee on this issue: John Morton, ICE Director; Chris Crane, President of the National ICE Council 118 of the American Federation of Government Employees; David Rivkin, a partner at the law firm of Baker Hostetler; Ray Tranchant; and Paul Virtue, a partner at the law firm of Baker and McKenzie.

Today’s hearing will reconsider many of the themes that came up in last week’s hearing in the House Border subcommittee. In that meeting, Republican members criticized DHS’s new policy as a grant of amnesty to the undocumented that will only serve to undermine border security. Democrats argued that prosecutorial discretion is a well-established law enforcement practice that both parties’ administrations and members of Congress have supported in the past. Former Manhattan District Attorney Robert Morgenthau sent a letter to both House subcommittees that put the feelings of the Democrats in perspective:

“[Prosecutorial discretion] is nothing new, and it is no secret. For at least the last three presidential administrations, immigration officials have openly acknowledged the impossibility of arresting, processing, and deporting every undocumented immigrant…. Making sure the Administration delivers on its promise of targeting those who present real threats to our safety should be a contribution that all could support, and that would make us all safer.”

Later this week, the House Judiciary committee is scheduled to markup a series of bills which include H.R. 3012, popularly called the “Fairness for High-Skilled Immigrants Act”. Among other things, the bill would take away the current per country cap limits of 7% on all employment-based (EB) green card categories over a 3 year transitional period leading to a strictly “first in, first out” system within the existing employment-based green card system. Upon passage, the measure would increase the family-based per country cap from 7% to 15%. In addition, the offset created by the Chinese Student Protection Act of 1992 is eliminated. The sponsors of the bill are Congressman Jason Chaffetz (R-UT) and Chairman Lamar Smith (R-TX).

During the 3 year phase-in of the “first in, first out” employment based system, no single group of applicants from a single country may receive more than 70% of employment based visas. This will adjust over the following fiscal years: fiscal year 2012, “first in, first out” applies to 85% of available EB visas; for FY 2013, “first in, first out” applies to 90% of available EB visas and for FY 2014, “first in, first out” applies to 90% of available EB visas for those visas not subject to “first in, first out”. Alternatively, in FY 2012, 15% would be set-aside and 10% for the next two fiscal years. No group of applicants may receive more than 25% of the total set-aside during the 3 year phase-in period.

H.R. 3012 is the last measure on the list of bills scheduled to be addressed. As such, the committee may not get to the measure this week.