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A flurry of activity in recent weeks by the Senate committee
responsible for immigration reform legislation and by the majority
leader ensures that the full Senate will consider immigration reform
when it reconvenes at the end of March. But exactly which bill it will
consider remains an open question.
March 16, 2006, was the last day scheduled for
the Judiciary Committee's markup of the immigration reform proposal
introduced by its chairperson, Sen. Arlen Specter (R-PA): the
Comprehensive Immigration Reform Act of 2006, also referred to as the "chairman's mark."
(For a description of the bill, see "Senate Judiciary Committee
Considering Flawed Immigration Bill,"
www.nilc.org/immlawpolicy/CIR/cir005.htm.) The chairman's
mark includes many immigration enforcement provisions and concepts taken
directly out of
HR 4437, the punitive and
extreme proposal that was introduced by House Judiciary Chair F. James
Sensenbrenner Jr. (R‑WI) and passed by the House last December. But
unlike HR 4437, Specter's bill would set up a huge new guest worker
program to regulate the future flow of immigrant workers, and it would
also establish a new "nonimmigrant conditional worker" status for
undocumented workers who have lived and worked in the U.S. since Jan. 4,
2004. However, Specter's bill does not provide a pathway to permanent
lawful status for nonimmigrant conditional workers or for those who
would enter the country under the new guest worker program, except that
it does provide for a modest expansion in the number of permanent
resident visas available under the "other worker" category. The impact
of this minor increase would be negligible, as workers who might qualify
for permanent residence under this program would have to wait decades
before they could obtain their green cards.
The Judiciary Committee first met on March 2
to begin its markup work, and by March 16 it had already held five
sessions devoted to the task. The committee's tight schedule was the
result of a promise by Senate Majority Leader Bill Frist (R-TN) that the
full Senate would begin consideration of immigration reform on March
27. Frist warned that if a bill did not emerge from the Judiciary
Committee by then, he would offer his own bill, which was expected to be
tilted heavily towards enforcement.
In the course of marking up Specter's bill,
Judiciary Committee members (primarily the Republicans) filed hundreds
of amendments, most of which had not yet been formally offered or voted
on by March 16. Many observers of this process believe that Republicans
on the committee who opposed the original bill's temporary worker and
conditional worker provisions filed the amendments as a clock-running
ploy intended to prevent the committee from completing its work in time
for the bill to be considered by the full Senate on March 27. This
would ensure that the Frist bill would be the one considered by the
Senate. Committee action was indeed slowed by the sheer number of
amendments, as well as by the chair's postponement of votes on
amendments that might ameliorate harsh provisions of the bill. The
committee's work also was slowed by the lack at critical points of a
quorum, which is required for voting to take place, due generally to the
absence of Democrats.
At the March 16 markup session, the committee
unexpectedly agreed to meet again on March 27 to vote on compromise
language that has yet to be written but that was described in general
terms. Committee staff announced the outlines of an agreement between
Sens. Edward Kennedy (D-MA) and John Cornyn (R-TX) covering temporary
workers. Under the plan, workers outside the U.S. could apply for a
two-year temporary worker visa. At the end of that visa's term, they
would have to leave the country for a year, after which they could apply
for a three-year visa, which could be renewed once. Employers could
petition for permanent resident status for an employee at any time
during the term of the initial three-year visa. An employee could
petition for permanent residence on his or her own after the end of the
first year of the second three-year visa's term. The requirement that
workers return to their home countries after the two-year visa expires
could be waived if the employer established that the worker was a
"critical employee" whose departure would hurt the employer's business.
What would be done about the millions of
undocumented workers already in the U.S. remained unclear after the
March 16 markup session. When the committee reconvenes on March 27, the
temporary worker and permanent status provisions of the
Secure
America and Orderly Immigration Act (S 1033, sponsored by
Sens. Kennedy and John McCain, R‑AZ) are expected to be offered as a
substitute to the temporary worker and conditional worker portions of
the chairman's mark. (For more detail on these provisions of the
McCain-Kennedy bill, see "An Analysis of the Secure America and Orderly
Immigration Act of 2005.") Specter has,
however, circulated an amendment that would add to the McCain-Kennedy
provisions a "sense of the Senate" statement that those who are
currently undocumented should not be able to obtain lawful permanent
residence status before people who are currently waiting for family- or
work-based visas or adjustment of status. Committee staff will
reportedly work on incorporating this feature into the McCain-Kennedy
provisions that may be substituted for the chairman's mark's temporary
and conditional worker provisions before March 27.
Even if the Judiciary Committee is able to
agree on a bill containing provisions for temporary workers or a pathway
to legalization for undocumented immigrants in the U.S., the bill will
likely also contain many enforcement provisions that are anathema to
immigrants' rights advocates. Such a bill is also likely to be the
target of many amendments on the Senate floor to delete the provisions
that would allow undocumented people to eventually obtain legal status
and to make the enforcement provisions even more harsh.
Despite the fact that the Judiciary Committee
appeared to be making progress, and without waiting to see whether it
would meet his March 27 deadline, Frist took preemptive action and
introduced his enforcement-only bill on March 16. His
Securing
America's Borders Act (S 2454) contains many of the same
provisions included in the chairman's mark, including those relating to
enforcement, highly skilled immigrants, and limitations on noncitizens'
access to review by the federal courts of decisions made by immigration
authorities, immigration judges, or the Board of Immigration Appeals.
However, the Frist bill contains no provisions for a temporary worker
program or a path to lawful status for undocumented immigrants already
in the U.S. The bill also includes enforcement amendments adopted by
the Judiciary Committee in the markup sessions held before March 16,
including provisions to build a fence along the Arizona section of the
U.S.-Mexico border; increase Border Patrol personnel; give state and
local police the authority to enforce federal criminal immigration laws;
authorize the inputting of names of certain noncitizens into the
National Crime Information Center database, including people who are not
actually wanted by immigration authorities, such as asylum-seekers and
applicants for cancellation of removal; expand mandatory detention; and
require that expedited removal be applied to many immigrants not
currently subject to that procedure.
Frist has previously stated that he will not
allow bills to come to the Senate floor unless they have been approved
by a majority of the Republicans on a committee. So it remains unclear
whether he will permit floor consideration of a Judiciary Committee bill
if it has not garnered approval by a majority of the committee's
Republicans. Nor is it clear whether he will permit consideration of a
bill approved by a majority of the entire Judiciary Committee that
provides a pathway to lawful status for undocumented persons currently
in the U.S. Under Senate Rule 14, the majority leader may bypass a
committee-approved bill and offer his own bill instead.
A bill passed by the Senate will likely go to
a House-Senate conference committee to be reconciled with HR 4437.
House leaders remain adamantly opposed to proposals that would create a
new guest worker program or legalize the status of undocumented people
currently in the country, so it is unclear whether reconciliation
between the two bills would be possible should the final Senate bill
contain guest worker and legalization provisions. Given the current
political climate, any final agreement reached by both houses of
Congress is likely to contain many of HR 4437's extreme enforcement
provisions.
By Joan Friedland,
NILC immigration policy attorney
friedland@nilc.org
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