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The following summarizes some of the
provisions of S. 1639 that are particularly damaging to low-income
immigrants and their family members:
S. 1639 sets up a 3-stage process in which
undocumented persons who arrived before January 1, 2007, may obtain a Z
nonimmigrant visa and ultimately adjust to lawful permanent residence.
But in the first stage, until certain “triggers” are met, undocumented
immigrants could be granted only a “probationary” immigration status,
and they would not be permitted to obtain even the temporary Z visa
status.
The triggers include a requirement that the
Department of Homeland Security (DHS) establish and demonstrate
operational control over 100 percent of the international land border
between Mexico and the United States. It is doubtful that this goal can
ever be met, which raises the question of whether the legalization
program contained in the “grand bargain” is an illusory one.
Other triggers include the hiring, training
and reporting for duty of 20,000 Border Patrol agents; building at least
370 miles of fencing and specified other border barriers; detention of
all removable non–U.S. citizens apprehended crossing the U.S.-Mexico
border; and establishment and use of identification standards and an
electronic employment eligibility verification system. Finally, DHS
must establish that it has received and is processing and adjudicating
in a timely manner the applications for provisional status in the Z visa
process, which includes completing background and security checks.
DHS’s capacity (particularly in light of the
historic incapacity of its immigration agencies and predecessor
Immigration and Naturalization Service) to carry out these functions is
in serious question. Noncitizens potentially face a long or indefinite
period of provisional status before their applications for Z status are
finally adjudicated.
Under S. 1639, Z visa holders would not be
able to adjust their status to lawful permanent residence until at least
30 days after an immigrant visa becomes available for approved immigrant
visa petitions filed before May 1, 2005 (the immigration backlog). The
purpose of this provision is to ensure that undocumented people go to
“the back of the line” in obtaining permanent residence.
Prior to a confusing amendment offered by
Sen. Jon Kyl (R-AZ) and approved by the Senate, the backlog reduction
period was estimated to be 8 years. It is unclear what the effect of
the Kyl amendment is on how long Z visa holders must wait to apply to be
permanent residents. Assuming that the period remains 8 years, and
assuming that the triggers have been met by that time, 20 percent of Z
visa holders would be granted visas each of the next 5 years, years 9
through 14 after enactment. As a result, the average amount of time in
Z visa status would be at least 11 years, and the last undocumented
immigrants would not be eligible for permanent residence until 14 years
after enactment. Z visa holders would remain in the precarious Z visa
status for this entire period.
Under S. 1639, Z visa holders, unlike other
nonimmigrant visa holders, would not be permitted to change to another
nonimmigrant status, nor would they be able adjust to lawful permanent
residence except through the Z adjustment process established by the
bill. For example, if a Z visa holder marries, or gets a job that would
otherwise permit her to adjust more rapidly, she would not be able to
take advantage of the faster avenue to permanent status.
Z nonimmigrant visa holders between the ages
of 16 and 65 would become deportable if they failed to “remain
continuously employed full time” until they were able to adjust to
lawful permanent residence. This term is not defined anywhere in the
legislation, so it would be defined by DHS, and there would be little or
no opportunity to overturn the agency definition even if it were
unreasonably narrow.
The exceptions to the continuous full-time
work requirement are narrow: full-time school; work combined with
school; physical or mental disability as defined under the Americans
with Disability Act; pregnancy; temporary interruption to work because
of a “force majeure” interruption (such as a hurricane, terrorism or
war); or for a 180-day interruption due to extraordinary circumstances,
in DHS’s discretion. Given these limited exceptions, depending on the
definition adopted, persons who could lose their status and be deported
include:
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A worker injured
on the job and placed on workers’ compensation leave but whose
injuries do not amount to an ADA disability.
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A worker who
loses his job or is temporarily laid off because of an economic
downturn or whose factory closes because the company has moved its
operations to a country with lower labor costs and who is out of
work for a period of time.
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A worker who is
fired for having complained about safety violations at the worksite.
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A woman who has
recently given birth.
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An adult unable
to work full time because she is caring for young children, or for a
disabled child or elderly or disabled parent or other relative.
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Domestic
workers, day laborers, or others who cannot demonstrate full-time
employment.
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Seasonal workers
unable to demonstrate continuous employment.
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Self-employed
individuals.
Z visa holders would be vulnerable to
deportation due to loss of employment from the moment they obtain their
visa until the day, years later, when they become lawful permanent
residents, even if they have U.S. citizen children, have bought houses
or started businesses, and have established roots in their communities.
S. 1639 provides Z visa holders with job “portability,” permitting them
to work for any employer. But in practice they would fear termination
far more than others because the consequences of losing their job would
be so dire. This would make them extremely vulnerable at the workplace
and therefore less able to assert their labor and employment rights.
Although the Z visa program is purportedly
part of the broader legalization program, in essence these workers would
form part of a temporary worker program, working and living under very
vulnerable conditions. They would be bound to the years-long wait,
precarious legal status, and family separation that a Z visa would
entail.
Under S. 1639, undocumented persons in the
U.S. would be required to pay high fees to obtain Z visa legal status.
These include:
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For the initial
Z visa: a processing fee of up to $1,500 per person, a penalty of
$1,000 for the principle Z visa applicant plus $500 for each
additional family member, and a $500 state impact assistance fee.
The initial fees, penalties, and state impact assistance fee for a
family of four would be up to $9,000.
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For renewal
after 4 years (visas must be renewed every four years indefinitely):
a processing fee of up to $1,500 for each family member. The
renewal fees for a family of four would be up to $6,000 every four
years.
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For adjustment
to lawful permanent residence: an application fee for each
applicant which soon may be $905, plus a penalty of $4,000 for the
principal applicant, all in addition to the cost of travel to the
applicant’s home country to file the application. The fees for a
family of four would be up to $7,620.
The fees for a family of four through
adjustment of status would be up to $28,620, assuming two renewals (or
higher if the adjustment of status fees are raised yet again as DHS has
done consistently in recent years).
Under an amendment offered by Sen. Jeff
Sessions (R-AL) (who opposes the underlying bill) and approved by the
Senate, both Y temporary worker visa holders and Z visa holders would be
ineligible for the Earned Income Tax Credit (EITC). The denial of the
EITC to lawfully present nonimmigrants has real economic significance.
The EITC lifts working families out of poverty primarily by lowering the
payroll and income tax burdens imposed on low-income working families.
In some cases, it also provides a refundable credit to eligible
families.
During the debate, Sen. Edward Kennedy
(D-MA) said that this would be the first time in U.S. history that we
create a two-tier tax system, using the tax system as a form of
punishment and demarcating one group of lawful residents to be subject
to an inferior set of rules. According to Sen. Kennedy, 98 percent of
the EITC goes to families with children, so the hardship imposed by this
measure would be experienced by the children of legalized immigrant
parents, many of whom are U.S. citizens.
The average value of the EITC is $2,200, so
denying it would amount to a total tax increase of more than $24,000
during the average 11-year period in which a family headed by a
legalizing immigrant might wait in legal status before becoming lawful
permanent residents under the system created under the bill. The burden
of this tax hike falls on families who will already need to scrimp and
save in order to pay the fees and fines levied against a family
of four seeking to obtain a green card.
This tax increase, combined with the
application fees and penalties, might well cause legalizing immigrants
to face an insurmountable financial burden that could effectively
prevent them from becoming permanent residents and citizens. This would
defeat a central goal of the bill.
Moreover, the bill would, for the first
time, single out those who are not “natural-born” U.S. citizens for
discriminatory treatment in access to and computation of Social Security
benefits. Foreign-born persons — both immigrants and naturalized
citizens — who obtained their Social Security numbers after January 1,
2004, would be denied Social Security credit for work done while not
work-authorized, including work on which they paid income and Social
Security payroll taxes. As a result, even after leaving the Z visa
status and achieving lawful permanent residence and even citizenship,
not all of their Social Security contributions would be counted towards
their benefits when they retire or become disabled. An audacious
amendment filed by Sen. John Ensign (R - NV) and set for consideration
when the Senate debate resumes would impose even broader-sweeping new
restrictions against foreign-born persons, potentially requiring the
Social Security Administration to redetermine the entire past work
history of all foreign-born persons, jeopardizing elderly and disabled
naturalized citizens who are already receiving retirement or
disability benefits.
S. 1639 would establish a temporary worker Y
visa under which workers may, if they have a job lined up in the U.S.
with a certified employer, be admitted for 2 years. They would be able
to extend the period of admission twice, but they would be required to
live outside the U.S. for 1 year between each period of authorized
admission. In other words, they could work in the U.S. for 2 years,
then leave for 1 year, then work in the U.S. for 2 years, then leave for
a year, and then work again in the U.S. for 2 years for a total of 6
years of work. This would be unworkable for Y visas holders or for
employers who want a reliable workforce.
These temporary workers would have no
realistic path to permanent residence because they would be required to
qualify for permanent residence under the same new “merit”-based system
as others applying from outside the U.S. But they would be
extremely unlikely to have the requisite number of points based on
employment, education, and English language ability to qualify them for
permanent residence status. The inability to obtain lawful
permanent residence would most likely result in the creation of a large pool of undocumented formerly temporary
workers.
The temporary workers also would not have
true job portability — the ability to change employers freely if they are mistreated.
Rather, they would only be able to switch to another employer that has
also been certified under the Y visa program. This limitation would
make them vulnerable to exploitation, including being paid at a lower
rate and having to work under unsafe conditions, and unable to complain
about these conditions or discrimination. Because these workers would
be required to return home for yearly intervals, they would be less
likely to organize collectively to improve their working conditions or
to join unions.
The Senate bill does little to address in
its new temporary worker program the rampant exploitation of existing
H-2A and H-2B temporary worker programs. For example, it does not hold
labor recruiters and employers jointly liable or increase oversight and
monitoring by the U.S. Department of Labor of predatory employers that
misuse these visa programs to import cheaper labor and displace U.S.
workers.
Z visa holders would endure years of
separation from spouses and children who live outside the U.S. During
the time they hold probationary status or a Z nonimmigrant visa, they
would be prohibited from petitioning to bring their spouses and children
to the U.S. The result would be an unconscionably long separation from
close family members.
When Z visa holders obtained lawful
permanent residence, they would then join the long line of other lawful
permanent residents petitioning on behalf of their spouses and children
for a reduced overall number of immigrant visas.
Temporary worker Y visa holders would not be
permitted to bring their families to the U.S. unless they could satisfy
hard-to-meet requirements of wages 150 percent above the poverty level
and unless they had medical insurance (a requirement that few low-wage earners would
be able to meet). Even then, their ability to bring their families would be limited:
a family member who accompanied a worker during the first 2-year period
would be barred from doing so during the second period, and one who came
during the second 2-year period would not be able to do so during the
third.
The inability of Z and Y nonimmigrants to
bring their families to the U.S. would be compounded by the bill’s
abandonment of a family-based immigration system in favor of an untested
point system that gives little weight to family relationships. The bill
reduces the number of immigrant visas that will be available for family
members, and it eliminates the ability of U.S. citizens to petition for
siblings and adult children. The shift to a point system would judge
immigrants based on their opportunities in other societies rather than
their potential in ours. This runs directly counter to historic
American values.
For immigration reform to be effective,
current undocumented immigrants must be persuaded that it is safe to
present themselves to a government agency that they have come to mistrust. They will
need assurances that the information they provide on their applications
about their histories, their employers, and their families will not be
used against them or their loved ones.
S. 1639 would do the opposite. It contains
sweeping provisions mandating disclosure of information in legalization
applications in connection with criminal or national security
investigations as well as investigations of a civil violation. Even a
civil violation totally unrelated to immigration (for example, failure
to obtain a business license) would sweep away confidentiality. The
provision would permit a fishing expedition for information, with no
oversight or limits whatsoever.
Under the bill, there would not be any
confidentiality protections if a Z visa or adjustment application were
administratively denied. The breach of confidentiality would not be
limited to cases where fraud, criminal violations, public safety, or
national security are at issue. Application information could be
disclosed where an application was denied because the applicant did not
meet the requirements related to English proficiency, physical presence,
work, knowledge of civics, health, or many other reasons. Application
information could be used against an applicant even when a case had been
appealed to a court, and even when a court ruled in the applicant’s
favor.
The risk to immigrants from disclosure of
information that could lead to their deportation would have no time
limits, since information in a legalization application could be
used against legalizing immigrants and their families indefinitely.
S. 1639 would require every employer in the
United States to verify the employment eligibility of their workforce —
immigrants and U.S.-born workers — through a new Electronic Employment
Verification System (EEVS). In fantastical fashion, S. 1639 mandates
that this massive new system be up and in place in all workplaces and
for all new hires within 18 months, and that it be applied to the entire
existing U.S. workforce within 36 months. These timelines are absurdly short
for such a massive undertaking involving new regulations, agency
capacity, new computer algorithms, training, planning, and equipment for
millions of employers.
The EEVS established by S. 1639 is not
workable, does not provide strong due process protections, does not
protect against discrimination, and does not protect privacy. The most
troubling provision is the requirement in Title I that the guest worker
and legalization programs for which it provides may not be implemented
until the EEVS (including the use of “secure” documentation and
digitized photographs that do not currently exist) is implemented.
Because of this pressure, the focus will be on getting the EEVS up and
running as quickly as possible, rather than on implementing an accurate
system that actually works without adversely impacting authorized
workers.
In addition to containing this “trigger”
provision, the bill does not address the weaknesses in the current
electronic verification system (the Basic Pilot program), which has been
in existence since 1997 and has been plagued by problems, including
inaccurate databases, flawed design and employer misuse of the program.
Only about 17,000 employers nationwide currently participate
in the Basic Pilot, and its expansion to mandatory use by over 7 million
employers with 160 million workers would be a complicated and logistical
challenge in the best of circumstances.
Besides creating an unreasonable and
unworkable implementation timeline, the bill also weakens the antidiscrimination
protections in current law. The process for confirmation of employment
eligibility could punish workers for DHS errors, and workers will have
insufficient due process protections. The documentation requirements —
which rely heavily on state compliance with the REAL ID Act and use of a
not-yet-in-existence biometrically-enhanced Social Security card — are
unattainable. Finally, employers, state and federal government
agencies, and the Social Security Administration would be required to
turn over to DHS confidential information about workers, with little in
the way of privacy protections and no remedies for misuse of personal
information
This unworkable mandatory EEVS program is
likely to result in tens of thousands of documented immigrants and U.S.
citizens losing their jobs because of database inaccuracies and because
the time periods provided for workers to correct their data and save their jobs
are inadequate. In addition, the proposed EEVS program will do nothing
to address the probability that the country’s undocumented population
will, in all likelihood, actually grow as a result of (1) people
overstaying their Y visas and (2) Z visa holders losing their jobs, thus
failing to meet the continuous employment requirement and sliding into
the underground economy.
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