Dreaming of Immigration Reform on Campus

By:  Leigh Cole
Dinse, Knapp & McAndrew, P.C.
Burlington, Vermont

The results of the 2012 national election raised comprehensive immigration reform to a national priority.  There is consensus among Republicans, Democrats, business organizations, unions and immigration advocates that immigration reform is imperative.  Congress and the Obama Administration are working on an immigration reform proposal and (dare I say it?) it seems likely that a major immigration bill will pass Congress and be signed by the President this year.   “Comprehensive immigration reform” is understood to include measures that will address the scarcity of employment-based visas for skilled, unskilled and professional workers and address the population of illegal aliens who have no prospect of legalization under current law, including “childhood arrivals.”

Of particular importance to educational institutions are the issues of childhood arrivals, immigrant visa backlogs for outstanding professors and researchers, and immigration benefits for same sex spouses.

There are an estimated 1.8 million individuals in the United States who arrived here as children, even as babies and toddlers, through no fault of their own.  Federal law doesn’t prohibit enrolling students without immigration status, but college students and graduates without lawful immigration status often have no way to legalize and become eligible to work in the United States.  This is particularly inhumane if the United States is the only home the person has ever known.  The DREAM Act under consideration in Congress for the past several years would allow childhood arrivals to become lawful residents if they meet eligibility requirements to establish they are productive members of society.  In June 2012, the Obama Administration implemented a version of the DREAM Act provisions through Executive Order, authorizing “deferred action” to protect childhood arrivals from deportation and grant temporary lawful status and employment authorization to qualifying individuals.  At this point it seems assured that any immigration reform legislation adopted this year will protect individuals who qualify as childhood arrivals under whatever definition is included in the bill.   College and universities should welcome this development, which will directly benefit their students and graduates, past, present and future, who are childhood arrivals.

Immigration reform also may benefit colleges and universities in particular by alleviating the very long queue that currently exists for outstanding professors and researchers who are citizens of India and China.  As of April 1, 2013, green cards are being issued to approved outstanding professors and researchers who were sponsored by their employers in September 2004 (citizens of India) and January 2008 (citizens of China), respectively.   These backlogs have direct adverse consequences for academia, because in many cases the professors and researchers are ineligible for important research grants until their green cards are issued, even though their immigration cases were approved on the merits years ago.

Another development in immigration law that would benefit colleges and universities is the extension of immigration benefits to same-sex spouses.  The Defense Of Marriage Act (DOMA), passed in 1996 and signed into law by President Clinton, bars the federal government from recognizing same sex marriages.  Since then, nine states (Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington) and the District of Columbia have authorized same-sex marriages.  President Clinton now sees DOMA as unconstitutional.  As reported in the New York Times on February 28, 2013, (“U.S. Asks Justices to Reject California’s Ban on Gay Marriage, N.Y Times, February 29, 2013), the Obama Administration has filed related briefs in two cases pending before the U.S. Supreme Court, arguing in each case that DOMA is unconstitutional as a violation of the Equal Protection Clause.  One case involves California’s Proposition 8 banning same-sex marriage, and the other case is a direct challenge to the constitutionality of DOMA.  U.S. Attorney General Eric Holder issued a statement saying DOMA is “unjust” and “rooted in discrimination” and that striking down DOMA is important not just to those directly affected but “to our nation as a whole”.  In addition, 212 members of Congress (172 Representatives and 40 Senators) filed a brief in the DOMA case urging the Court to strike the ban on same-sex marriage.   So even if the U.S. Supreme Court upholds DOMA, the law could be vulnerable to repeal by Congress.

U.S. immigration law contains special provisions to allow colleges and universities to attract and retain “the best and the brightest” teachers and professionals.  Colleges and universities may sponsor the “most qualified” teachers for permanent residency, and may sponsor specialty occupation workers for H-1B status at any time without regard to the annual numerical limit on H-1Bs (the “H-1B cap”).  But the lack of immigration status for same-sex spouses remains a significant barrier to recruitment and retention of international faculty and professionals at colleges and universities.  It’s painful to explain to international recruits, perhaps as their first introduction to U.S. law, that their same-sex spouse or partner may accompany them as a “visitor” while they work in the United States but can’t qualify for marriage-based status to live and work in the United States like spouses in heterosexual marriages.

Striking or repealing DOMA and enacting immigration reform that includes DREAM provisions and addresses immigrant visa backlogs would be major improvements for colleges and universities.

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