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On September 29, 2010, Senators Robert Menendez (D–NJ) and Patrick Leahy (D–VT) introduced “The Comprehensive Immigration Reform Act of 2010” (S. 3932). According to Senator Menendez, the bill “addresses long-standing, wide-ranging flaws in the immigration system that have been priorities of groups on each side of the immigration reform debate.” The bill was introduced shortly before Congress adjourned for its mid-term election recess. As reported by The Hill, Senator Menendez defended his timing for introducing the bill by stating that it could lead to possible “lame-duck movement” on the legislation, and in the longer term it serves as an "invitation to bring Republican colleagues to discussion" on immigration reform.
S.3932 addresses six major immigration topics, highlights of which include:
- Border Enforcement
- Establishes border enforcement “triggers” that must be met before unauthorized immigrants can apply for permanent residency.
- Requires the Department of Homeland Security (DHS) to review assets and staffing needed for border security and enforcement, and funds improvements and hiring in accordance with this review.
- Clarifies that the power to regulate immigration rests with the federal government, not states and local authorities, and that the latter have no “inherent authority” to enforce federal immigration laws (outside of 287(g) agreements).
- Interior Enforcement
- Requires DHS to track noncitizens’ departures to ensure they do not overstay their visas.
- Expands penalties for passport, visa and immigration fraud.
- Denies “visa waiver” privileges to countries whose citizens attempt to overstay visas.
- Worksite Enforcement
- Requires that all employers adopt an employment verification system within five years.
- Creates a new fraud- and tamper-resistant Social Security card.
- Requires workers to use fraud- and tamper-resistant documents to verify work authorization.
- Reforming the Legal Immigration System
- Creates the structure for a new nonimmigrant visa program (H‐2C) to address shortcomings in existing worker programs that have led to undocumented migration.
- Expands labor protections in current H-2A, H-2B, H-1B and L-1 visa programs.
- Incorporates the AgJOBS bill, which provides a path to permanent residency for farm workers and revises agricultural employer sponsorship requirements.
- Legalization of Undocumented Individuals
- Creates Lawful Prospective Immigrant (LPI) status for non-criminal undocumented immigrants living in the United States since September 30, 2010. LPI applicants must, among other requirements, submit biometric and biographical data, undergo security and law enforcement checks, and pay a fine.
- Incorporates the DREAM Act, which creates a path to legal status for individuals brought illegally to the United States as children, provided they meet certain criteria and enroll in college or the U.S. military.
- Immigration Integration and Other Reforms
- Enhances programs and policies to help immigrants learn U.S. civics and the English language.
- Provides humanitarian visas for Haitian children orphaned by the 2010 earthquake.
- Requires the State Department to develop a strategy to reduce migration pressures.
The Supreme Court has held that an Arizona law that imposes sanctions on employers that hire unauthorized workers and requires the mandatory use of E-Verify is not preempted by federal law, and therefore valid. The Arizona law at issue – the Legal Arizona Workers Act – provides for the suspension or revocation of an employer’s business license in that state if that employer knowingly or intentionally hires an unauthorized worker. The statute also mandates the use of the E-Verify electronic verification system to check on an employee’s work eligibility. The Court’s decision in Chamber Of Commerce v. Whiting upholding this statute opens the door for other states to enact laws that similarly impose stricter penalties on employers for immigration law violations. To learn more about the decision, please continue reading at Littler's D.C. Employment Law Update blog.