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Thursday, March 2, 2006 -- Last week, Sen. Arlen Specter
(R-PA) circulated a draft of his
long-awaited immigration reform proposal (the
Comprehensive Immigration Reform Act of 2006). The
draft will form the basis for Senate Judiciary Committee consideration
of immigration reform starting today, and likely continuing with
consideration of amendments each Thursday for the next two to three
weeks. Senator Specter is the chair of that committee.
If passed by the Judiciary Committee, the bill will
then go to the Senate floor, where Senate Majority Leader Bill Frist
(R-TN) has scheduled debate to start on March 27. This schedule
could change, and the bill could look a lot different when it comes out
of the Judiciary Committee than it does today. If passed by the
Senate, the bill will likely go to a House-Senate conference committee,
where differences between it and the bill passed by the House of
Representatives last December,
HR 4437 (the Border Protection,
Antiterrorism, and Illegal Immigration Control Act of 2005),
will have to be reconciled. The result may well be a law that
incorporates many of HR 4437's egregious provisions.
What is in the bill?
Weighing in at 305 pages, the Specter draft, or
"chairman's mark," is a severe disappointment, to say the least,
especially since it incorporates many of HR 4437's more punitive
and extreme provisions. But unlike House Judiciary Committee Chair
F. James Sensenbrenner Jr., HR 4437's principal author, Senator Specter
has made an effort in his chairman's mark to address the problems with
our current immigration system in a manner that goes beyond fences,
punishment, and "enforcement" alone.
Unfortunately, however, the Senate bill's proposed
temporary worker program and its proposal to create a new status for
undocumented immigrants are both deeply flawed. If adopted, they
would create a permanent second class status for many immigrants,
encourage exploitation of immigrant workers, and deprive immigrants of
rights otherwise taken for granted in the U.S.
Enforcement Provisions
Some nonexhaustive samples of the "enforcement"
provisions in the Specter draft include:
- Increased border control mechanisms without balancing provisions
to protect the rights of border communities;
- More stringent detention provisions, including restoration of
policies under which non-U.S. citizens could be detained
indefinitely under certain circumstances;
- Further broadening of the definition of "aggravated felony,"
which already includes many relatively minor offenses (a conviction
for such an offense precludes an immigrant from nearly all forms of
immigration relief);
- New bars to naturalization for lawful permanent residents;
- Criminalization of immigration status violations (and by making
unlawful presence in the U.S. a continuing criminal offense, this
provision automatically would enlist state and local law enforcement
officers in immigration enforcement);
- Criminal penalties for "facilitating" illegal entry into the
U.S., a formulation that could be interpreted to outlaw the work of
many nonprofit agencies, or for "encouraging" an undocumented
immigrant to remain in the U.S., a broad new crime that could apply
to the family members of undocumented people or other innocent
parties;
- Restrictions making "voluntary departure" (a form of immigration
relief that allows immigrants to avoid being ordered removed from
the U.S., and the government to avoid the expense of removal
proceedings) less available;
- A massive new mandatory electronic employment eligibility
verification system with few safeguards to protect workers from
errors, misuse, or privacy lapses; and
- Restrictions on judicial review that would prevent most
immigrants from having their day in court.
Other Provisions
In addition to its enforcement provisions, the
Specter draft includes provisions that:
- Aim to reduce family immigration backlogs;
- Set up a huge new guest worker program to address the future
flow of immigrant workers; and
- Establish a new "nonimmigrant conditional worker" status for
undocumented workers who have lived and worked in the U.S. since
Jan. 4, 2004.
Guest Worker Provisions
The guest worker program would permit an unlimited
number of individuals to come to the U.S. from abroad to work for 2
terms of up to 3 years each (for a total of 6 years) in types of jobs
not covered by other guest worker categories. This status would
not provide any opportunity for the guest worker to adjust to permanent
status at the end of the 6-year authorized stay. A guest worker
could leave his or her job during the authorized period of stay, but if
the worker could not find another one with an eligible employer within
45 days, the worker would have to return to his or her country of
origin. To be eligible to hire guest workers under this program,
an employer would be required to pay a fee and attest that the positions
for which it is hiring meet a long list of requirements. The
spouse and children of guest workers under this program would be able to
come to the U.S., but would not be allowed to be employed here. At
the end of the second 3-year term, guest workers under this program
would be required to return to their home countries for at least 1 year.
The proposal makes no provision for allowing such workers to remain in
the U.S. if they put down roots here.
Nonimmigrant Status for
Undocumented Workers
The new program for undocumented workers who
already live in the U.S. would apply to individuals who were in the U.S.
and employed as of Jan. 4, 2004. They would be eligible to apply
for a new "nonimmigrant conditional worker" status that would last
indefinitely if they remained continuously employed. It would
permit them to live and work in the U.S. and to be readmitted after
traveling abroad. But their status would be precarious, and they
would remain in a conditional status indefinitely, with no route to
permanent resident status or U.S. citizenship:
- All 9 to 11 million undocumented people who would be potentially
eligible for this program would be required to apply within the
9-month period between 3 months and 1 year after the provision's
enactment.
- Those who failed to apply during this period would not only lose
their right to obtain the new status, but also would be unable
to apply for other forms of relief from removal, such as, for
example, the relief that is available for victims of domestic
violence.
- Applicants for nonimmigrant conditional worker status would be
required to waive their right to contest any future action brought
against them by the government to remove them from the U.S.,
regardless of the legitimacy of the action (however, if they were to
apply for asylum or relief under the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, they
would be allowed to contest the government's removal action against
them).
- The employers of undocumented people applying for nonimmigrant
conditional worker status would be required to submit an affidavit
for each such worker attesting to his or her current employment and,
to continue employing such workers, would also have to pay a $500
fee for each one.
- The nonimmigrant conditional worker could not work for just any
employer, but would be limited to positions that meet the
requirements for hiring guest workers -- such as, for example, that
the employer has filed a petition with the U.S. Dept. of Homeland
Security and paid a fee, and has attempted to recruit U.S. workers
for 90 days prior to hiring the undocumented person.
- Nonimmigrant conditional workers who lose their job and are
unable to find another with this limited pool of employers within 45
days would also lose their nonimmigrant status and be required to
leave the U.S.
- Nonimmigrant conditional workers would not be eligible for any
new federal public benefits, and, depending on how the provision is
interpreted, they could actually lose access to the few benefits
that they now can receive, such as emergency health care, as well as
testing for and treatment of communicable diseases.
- The spouse and children of a nonimmigrant conditional worker
would be able to remain in the U.S., but would not be authorized to
be employed here.
These requirements arguably would leave
undocumented workers and their families even more vulnerable and more
subject to exploitation than they are now. Consider, for example,
the impact on undocumented students who have grown up in the U.S.
If they were in school and not working on Jan. 4, 2004, they would not
be eligible to remain in the U.S. unless they have a parent or spouse
who qualifies for the nonimmigrant conditional worker program.
Even if they do have a qualified parent or spouse, such a student would
not be able to be employed legally in the U.S., either now or in the
future. If the spouse or parent subsequently leaves the U.S. or
otherwise loses the status, the student would also lose his or her
ability to remain. If, on the other hand, the student was employed
in the U.S. as of Jan. 4, 2004, and thus decided to apply for
nonimmigrant conditional worker status, to obtain and remain in the
status the student would be required to be continuously employed by one
of the certified guest worker employers, a requirement that would likely
result in his or her having to drop out of school.
Section-by-Section Summary
Available
With the assistance of other groups, including NILC,
staff from the U.S. Conference of Catholic Bishops have prepared a
complete
section-by-section summary of the
Senate bill.
Next Steps
As discussed above, the chairman's mark will be
considered in the Senate Judiciary Committee starting today.
During this committee markup, Senators are expected to introduce a
multitude of amendments, some of which would greatly improve the bill,
others that would make it even more punitive. Among the latter, we
can expect amendments containing proposals to build a fence along the
U.S.-Mexico border, to coerce state and local police into enforcing
civil immigration laws, and many others. Among the former, we can expect
amendments to strike or modify many of the most extreme "enforcement"
provisions, as well as efforts to rewrite the bill to make it more
closely resemble the immigration reform proposal introduced by Senators
John McCain (R-AZ) and Ted Kennedy (D-MA), the
Secure America and Orderly
Immigration Act (S. 1033). Other improvements such as
the
DREAM Act may also be offered as amendments.
At this time, the outcome of this debate is far
from certain. It is very possible that a bill very much like the
one passed by the House in December (HR 4437)could be enacted by this
Congress and signed by the president unless more outrage against such an
outcome is expressed in the coming weeks and months.
We will provide updated information as this bill
progresses through Congress.
FOR MORE INFORMATION, CONTACT
Josh Bernstein, NILC director of federal
policy
bernstein@nilc-dc.org |
202.216.0261
Joan Friedland, NILC immigration policy attorney
friedland@nilc-dc.org |
202.216.0261
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