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June 2013
Comprehending Comprehensive Immigration Reform
By Steven H. Garfinkel

     On April 16, 2013, Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet and Flake (the “Gang of Eight”) introduced the Border Security, Economic Opportunity and Immigration Modernization Act.

     The comprehensive immigration reform (CIR) bill would: (1) enhance U.S. border security and the current employment verification system; (2) create a method by which undocumented foreign nationals currently in the U.S. may qualify for provisional immigrant status; and (3) amend methods of legal immigration for high and low skilled workers.

     The Gang of Eight recognizes America’s need to modernize its current legal immigration system—balancing fairness to American workers against the economic need for foreign labor.

     On May 21, 2013, the Senate Judiciary Committee advanced the CIR to the Senate floor for debate and vote. As the bill winds its way through the Senate, a bipartisan group of eight House Representatives is working on its own legislation—a collection of individual bills to address CIR, which would likely necessitate harmonization with the Senate bill.


Border Security

     The Gang of Eight touts its legislation as containing the toughest border immigration enforcement measures in U.S. history. The legislation requires that specific goals be met before those granted provisional immigrant status may apply for green cards.

     First, the Department of Homeland Security (DHS) must create, fund and initiate a border security and border fence plan within 6 months. Next, DHS must then achieve complete border awareness and at least 90 percent apprehension rates in high risk sectors along the southern border within 5 years.

     As part of internal security, the bill calls for universal implementation of an E-Verify system by which employers would be responsible for verifying each employee’s authorization to work through the DHS and Social Security Administration’s database. The bill also requires implementation of an exit system within 10 years to prevent visa overstays.


Provisional Immigrant Status for America’s Undocumented Population

     The next piece of CIR legislation attempts to deal fairly with America’s undocumented population, estimated at approximately 11 million, without granting amnesty or federal benefits. The bill would prohibit undocumented immigrants from applying for temporary provisional immigrant status until the border security and fencing plan is in place.

     Thereafter, undocumented immigrants who come forward would need to pass background checks, be fingerprinted, pay $2,000 in fines as well as taxes owed, be gainfully employed and prove physical presence in the U.S. since before 2012. By registering these individuals, the government would know more about a population that has been living in the shadows (who they are, in what activities they are engaged, etc.).

     The legislation would prohibit those granted such provisional immigrant status from obtaining green cards or citizenship for 10 years unless border security, employment verification and exit system goals have been met. Status could be revoked for commission of a serious crime or failure to comply with employment, public charge, tax or physical presence requirements.

     To take into account fairness to legal immigrants, the legislation proposes a longer, more costly and less certain path for undocumented immigrants to obtain status. Young undocumented individuals whose parents brought them to the U.S. illegally, however, would not be punished for their parents’ mistakes.


Legal Immigration

   The Gang of Eight recognizes the need to modernize our legal immigration system to grow our economy and create jobs for American workers. Its proposal focuses on a more merit-based immigration system to help America attract and retain the best and brightest foreign talent, including entrepreneurs, innovators, investors and highly skilled workers in the STEM (Science, Technology, Engineering, Mathematics) disciplines.

     At the same time, it protects American workers by prohibiting work visas in areas where unemployment rates are excessive and for jobs that Americans are willing and able to do. Instead of educating highly skilled workers and requiring that they return to their home countries to benefit competing economies, graduates would be granted green cards incentivizing them to remain in the U.S. and contribute to our economy. The legislation also contemplates a revised guest worker program to ensure that America has sufficient lower skilled labor to meet current and future demand.


Content contributed by Steven H. Garfinkel, J.D., Managing Partner of Garfinkel Immigration Law Firm and a nationally recognized immigration law specialist with over 25 years of business immigration law experience. For more information, contact him at 704-442-8000 or or visit


Steven H. Garfinkel, J.D., is the Managing Partner of Garfinkel Immigration Law Firm.
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