Nation of Immigrators
Who is Eligible for the Beltway Visa?
An internal straw poll of current Members of Congress shows universal agreement that they will be eligible for the new visa without the need to do anything other than present their Congressional ID at ports of entry into the Beltway. Most legislators also agree that lobbyists should qualify for the visa, but with some restrictions. The proposal with the most traction is to adapt the current EB-5 investor visa category[i] to allow lobbyists meeting certain criteria to reside permanently in Washington, DC. Lobbyists would have to invest at least $1 million in a pooled Congressional incumbents’ campaign fund and prove how the lobbyist’s investment will create at least 10 jobs for US workers.
There is bitter dispute, however, about whether federal employees (other than Members of Congress) should be granted the DC visa. Most likely, the increased fees and hiring limits on H-1B specialty occupation workers and L-1 intracompany transferee workers proposed in the recent Senate bill on comprehensive immigration reform (called S.744)[ii] will be adopted in modified form, requiring executive branch agencies to pay annual fees from $2,500 to $15,000 per federal employee and placing a cap on the number of workers an agency could employ in order to discourage the government from hiring. Some Congressmen proposed adding a general provision to defund the judiciary entirely and indefinitely, but because of Constitutional concerns raised, Congress will most likely develop a more measured response to its concerns about judicial activism and intervention in immigration matters, perhaps by limiting the period of any activist judge’s authorized stay in DC status to three non-consecutive months per year.
Impact on Current Residents of Washington, DC?
Spokesmen for Congressional members pressing for the new visa acknowledge that the proposal, if enacted, would render virtually all current residents of the District of Columbia “illegal” (or to use the preferred term among the Washington elite, sans papier, and deportable to one of the 50 States. Various monetary fees have been discussed, ranging from $1,000 upwards, that residents could pay in order to obtain the new visa and remain in Washington, DC. Concerns about mass deportation were summarily dismissed, however, with Congressmen emphasizing the importance of national security, fiscal responsibility and the rule of law. Commuters from neighboring states would similarly be affected, but concerns about loss of talent precipitated by the new restriction and its economic impact were also dismissed. Some Congressmen were adamant that there was plenty of talent already in Congress and no need to import any more. One Senator conceded off the record that, with the government shut down, there really wasn’t all that much to do, so he didn’t see a problem.
There has been vigorous debate on how best to enforce the borders of the District of Columbia. Some Congressmen have insisted that no visas should be processed until the District’s borders have been effectively sealed, saying they don’t want to repeat the mistakes the United States has made with its international borders. Others want to introduce “triggers” similar to those in S.744, tying the legalization of the undocumented to the achievement of certain border security milestones. Some have advocated that the District should apply the latest drone technology to secure its borders, while others are placing their faith in National Security Agency (NSA) monitoring systems to track “illegals” entering Washington without proper documentation.
New Grounds of Inadmissibility – E-Verify and Mandatory Health Insurance
In order to use the DC visa, visa holders (other than members of Congress) would be registered with E-Verify[iii] and thereby prove their eligibility to work in the United States as a prerequisite to obtaining the DC visa. (Since so many sight-seeing attractions in Washington were closed due to the shutdown, Congress hasn’t actually given any thought to foreign tourists who might want to visit our capital and how they could comply with this requirement.) Should the federal government – including the current E-Verify program – become unfunded again (a real possibility given the partisan one-upmanship after a deal was struck in the 11th hour on October 16), the Beltway visa would remain unavailable except to current Members of Congress. A proposal has also been suggested to fund E-Verify with user fees – similar to how immigration benefits currently are funded – to raise revenue and to allow for the DC visas to be issued as soon as possible, but some members of Congress are actually pleased that the lack of funding would delay implementation of the new visa.
DC visa applicants must also prove that they have adequate health insurance, a provision borrowed from the J-1 exchange visitor program.[iv] Congress has also seriously considered borrowing the basic construct of the J-1 program for the DC visa, delegating the administration of the program to private-sector agents, called “sponsors,” who would be responsible for the initial review of the application for eligibility and would also be held accountable for visa-holders’ compliance with the program requirements.[v]
Narrowly defeated was a proposal to keep deadbeats out of DC by insisting that visa applicants prove their creditworthiness as part of the visa application. The proposed ground of inadmissibility would have prohibited DC visa issuance to anyone who has ever defaulted on a loan.
As mentioned above, Congress has considered various means to limit even further what it considers to be judicial meddling in immigration matters. In the eyes of many Members of Congress, current law[vi] has still not effectively stripped the courts of jurisdiction over immigration matters, so Congress is considering not only the defunding of the judiciary but also repeal of the Administrative Procedure Act, at least with regard to immigration matters, and some have even floated a Constitutional amendment.
Legislators have written conflicting effective dates into the various DC visa bills, some preferring December 32, 2013, while others are advocating for a retroactive September 31, 2013. Ordinarily, these kinds of discrepancies are left to the executive branch or the courts to resolve if Congress doesn’t come up with a fix itself. With another government shutdown on the horizon and judicial review potentially eliminated, it remains up to Congress to clarify when the Beltway visa law, if in fact enacted, will take effect.
Comprehensive immigration reform, like health care, tax reform and a balanced budget, is hard work. Tough decisions must be made, policies thought through, discussed civilly and resolved through compromises hammered out where both sides set partisanship aside. Running into your room and locking your door – in essence what the House of Representatives did on the 2014 budget and continues to do on comprehensive immigration reform – does not produce effective solutions to complex problems. Instead, it only invites ridicule. We deserve better.
* Ted J. Chiappari is a partner at Satterlee Stephens Burke & Burke LLP in New York City. Angelo A. Paparelli is a partner in Seyfarth Shaw in New York and Los Angeles. The authors thank Olivia M. Sanson, an associate at Satterlee Stephens Burke & Burke LLP for her assistance in the preparation of this article.
[i] By way of background, the EB-5 investor visa gives entrepreneurs the option to obtain permanent residence (the “green card”) in the United States if they make a substantial investment in a business that creates at least 10 full-time jobs for US workers. That investment can be as little as $500,000 if the business is in a high unemployment area; otherwise the minimum investment is $1 million. The program has gained tremendously in profile and popularity recently, in part because of lack of readily available credit from traditional sources, which has increased the demand for alternative sources of financing, and in part because the program’s insistence on job creation is politically attractive. Even so, critics claim that the program is fraught with abuse and poor administration, and also claim the program favors wealthy foreign nationals and puts a price tag on US citizenship, a perception fostered, e.g., by online ads from immigration attorneys on “Buying a EB5 Green Card” (see. e.g., http://www.youtube.com/watch?v=cyJ_OcyYqZY, last accessed on October 14, 2013). See Andrew Rafferty, “Money can't buy love, but it can open the door to US citizenship,” U.S. News on NBCnews.com (April 28, 2013), http://usnews.nbcnews.com/_news/2013/04/28/17724530-money-cant-buy-love-but-it-can-open-the-door-to-us-citizenship (last accessed on October 14, 2013).
[ii] S.744, the Border Security, Economic Opportunity, and Immigration Modernization Act , the bipartisan bill passed in June 2013. For a detailed summary of the bill’s H-1B and L-1 provisions, see Austin T. Fragomen, Jr., “Immigration Reform and the H-1B and L-1 Categories,” 90 Interpreter Releases 1763 (Sep. 2, 2013). See also Immigration Policy Center, American Immigration Council, “A Guide to S.744: Understanding the 2013 Senate Immigration Bill,” at http://www.immigrationpolicy.org/special-reports/guide-s744-understanding-2013-senate-immigration-bill, for a summary of all of the bill’s provisions. On October 2, 2013, Democrats in the House of Representatives introduced H.R.15, also entitled the Border Security, Economic Opportunity, and Immigration Modernization Act and based on the Senate bill – see Immigration Policy Center, American Immigration Council, “A Guide to H.R. 15,” at http://www.immigrationpolicy.org/special-reports/guide-hr-15-border-security-economic-opportunity-and-immigration-modernization-act (last accessed on October 14, 2013).
[iii] Under S.744, E-Verify, now a voluntary (and free) program that allows businesses to confirm employment eligibility online, would become mandatory for all employers over a five-year period. See Immigration Policy Center, American Immigration Council, “A Guide to S.744: Understanding the 2013 Senate Immigration Bill,” at http://www.immigrationpolicy.org/special-reports/guide-s744-understanding-2013-senate-immigration-bill,
[iv] 22 CFR § 62.14 requires that each exchange visitor have medical and accident insurance in effect throughout the entire visit. The mandatory insurance must include coverage of medical benefits of at least $50,000 per accident or illness, repatriation of remains in the amount of $7,500; medical evacuation expenses of $10,000; and a deductible of no more than $500 per accident or illness.
[v] See, in general, 22 CFR §§ 62.1 – 62.17.
[vi] 8 USC § 1252 [Immigration and Nationality Act § 242], which, among other things, generally precludes judicial review of any denial of discretionary relief and of any removal order based on the commission of a criminal offense.