Immigrants' Rights Update, Vol. 22, Issue 2, March 26, 2008
By Josh Bernstein
Former Director of Federal Policy
As members of Congress left Washington, DC, for a two-week spring recess, the fate of pending anti-immigrant legislation remained uncertain. The flagship proposal is the Secure America through Verification and Enforcement (SAVE) Act, HR 4088, sponsored by Rep. Heath Shuler (D-NC) and cosponsored by Rep. Tom Tancredo (D-CO) and 144 other members, including 49 Democrats (the list can be found here). The SAVE Act is the subject of an aggressive procedural maneuver by House Republican leaders and of complicated negotiations among House Democrats trying to satisfy various interests by packaging a number of immigration measures together into an echo of the comprehensive immigration reform bill that failed to pass the Senate last year.
SAVE Act Provisions
The SAVE Act would provide some of the “enforcement” agenda from last year’s defeated Senate bill, but without any of the provisions intended to resolve the status of undocumented immigrants or to reform the legal immigration system. We put “enforcement” within quotation marks because despite the sound and fury, the expense, and the harm these measures would do to many immigrants’ and U.S. citizens’ quality of life, they would likely have little impact on the number of unauthorized immigrants who come to or decide to remain in the U.S.
Among other things, the SAVE Act would:
Expand the problem-plagued Basic Pilot electronic employment eligibility verification system (recently rebranded “E-Verify” by the U.S. Dept. of Homeland Security, or DHS) into a nationwide mandatory program for all employers and workers in the economy.
Convert the Social Security Administration (SSA) “no-match” letter program into a blunt immigration enforcement tool by requiring employers to fire workers with mismatched information unless the workers can fix the problem within 10 days (70 percent of errors in SSA’s database pertain to U.S. citizens).
Require all individuals who work for more than one employer at the same time to provide proof of employment to SSA before their Social Security account can be credited.
Override current confidentiality of tax and Social Security information by dumping all reported anomalies such as multiple use of a Social Security number (SSN) and mismatches into a DHS database while providing few if any protections against misuse of such information.
Continue the exponential but ineffective increase in the number of Border Patrol agents that we have seen in recent years without providing for any balancing protections needed to hold the government accountable for reported abusive practices.
Continue to pour even more money into infrastructure and technological gadgetry along the southern border without addressing the problems of mismanagement that have tainted the massive contracts that have been let in recent years.
Expand the scope of activity that can be prosecuted as “alien smuggling” and narrow the protections from such prosecution enjoyed by religious workers.
Provide incentives for more state and local police to enforce immigration laws. (Police nationwide have been reluctant to embrace such enforcement because it detracts from their core mission of preventing crime and catching criminals.)
Continue the recent unprecedented increase in immigration incarceration capacity from 27,500 to 35,500 beds while providing for none of the reforms that human rights advocates have urged in response to well-documented abuses in current detention facilities.
On March 11, at the behest of the Republican leadership, Rep. Thelma Drake (R-VA) filed a discharge petition on the SAVE Act. A discharge petition is a mechanism whereby a majority of the House of Representatives can wrest a measure out of the normal committee process over the objections of the leadership and bring it directly and immediately to the floor. It is generally considered an act of rebellion for a member of the majority party to sign a discharge petition, since doing so greatly undermines the power of the majority to govern the House effectively, and not only on the issue that the petition addresses. As of the spring recess, the SAVE Act discharge petition had secured 181 out of the 218 signatures it would need to take effect, including 9 Democrats, a large number but fewer than some had predicted. (The current list of signers can be found here.) The petitioners will be able to force the issue if they are able to gather the required number of signatures any time until six days before the end of the session.
Johnson Bill Introduced
Another significant “enforcement” bill was introduced on Feb. 28, 2008, by Reps. Sam Johnson (R-TX), Kevin Brady (R-TX), and Paul Ryan (R-WI). Like the Shuler bill, the New Employee Verification Act of 2008 (HR 5515) would create a mandatory electronic employment eligibility verification system that would require all 7 million employers in the U.S. to query a federal government database during the hiring process of each and every worker they employ. The Johnson bill has been framed as an alternative to the electronic eligibility verification system (EEVS) in the SAVE Act because it addresses some of the inadequacies of the Basic Pilot/E-Verify employment eligibility verification program upon which the SAVE Act is based. But it fails to address the most fundamental problems with the SAVE Act: it would rely on the same seriously flawed databases and would add the same strains to our economy because it does not provide a path to legal status for the over 7 million undocumented workers in the U.S. Under the Johnson bill, the EEVS would be administered by SSA instead of by DHS, an approach that would create additional problems because SSA, in carrying out its core mission, is already overburdened, and the new responsibilities would likely result in even more Social Security–related errors and delays.
The Johnson Bill also contains provisions that would weaken the Social Security system by rupturing the principle that currently allows beneficiaries to count on receiving benefits based on their work and the contributions they have made to the system. Under the Johnson bill, a U.S. citizen or lawful resident could have retirement or disability benefits reduced or even eliminated because he or she earlier worked for a period without authorization. The bill would also take away up to the entire first year of credit earned by newly arrived lawful immigrants even if they never worked without authorization. These changes are not only unfair: If U.S. citizens are unable to rely on their own Social Security earnings in old age, they will be forced to accept assistance from state, local, or charitable sources, unnecessarily straining community resources.
Employment eligibility verification and the other provisions of the Shuler bill are part of the mix of legislation that House Democrats have reportedly been negotiating for months, according to published accounts. The details of what such a package would include have not been made public, and the rumors keep shifting; but one of the constants is extension of the “recapture” provisions that allow H2-B workers who have gotten visas in the past to return without being counted against the 66,000 cap on such visas.
H2-B visas provide temporary admission to the U.S. for unskilled workers coming to work in seasonal or short-term nonagricultural jobs. The recapture provisions resulted in nearly twice the number of H2-B visas being issued in 2006 than otherwise would have been permissible, and businesses that have come to depend on the program, such as resorts and landscaping companies, are desperate for the extension. On the other hand, the program has been abused by bad-apple employers to break organizing efforts and even to abet human trafficking, and so labor unions and worker advocates have insisted that workplace enforcement provisions must accompany any H2-B extension. Rep. Bart Stupak (D-MI) introduced HR 1842, legislation providing an extension without any workplace enforcement provisions, in April of last year, and it currently has 143 cosponsors.
Another constant of the negotiations has been the effort by members of the Congressional Hispanic Caucus (CHC) and others to include modest or temporary provisions to “do something about the undocumented.” According to published reports, members have discussed the idea of a temporary worker visa that undocumented workers and their families could obtain that would not provide a path to citizenship and that would expire after a certain number of years. Once word of such negotiations became public, anti-immigrant groups sent out mailings complaining about efforts to pass a “five-year amnesty” and some pro-immigrant groups also expressed concern about the difficulties of living under such a visa, with the threat of deportation looming after the time expires. It is notable that to date the DREAM Act, which would provide a six-year path to legal status for individuals brought to the U.S. years ago as children, has not apparently been a subject of the negotiations, although DREAM Act students likely would be included in any temporary visa program available to undocumented workers.
The negotiations over these and other provisions continue, but it has proven very difficult for the negotiators to put a package together that satisfies enough members to have a reasonable chance of passing the House. Further complicating the negotiations is the current climate of fear among members of Congress, who continue to run for cover against the anti-immigrant noise machine despite the mounting evidence that the anti-immigrant message does not deliver electoral victories. In such a climate, advocates fear that any negotiated package could have positive elements taken out — and punitive ones added in — as the process unfolds. And even if a bill does pass the House, it faces an uncertain fate in the Senate, as we saw last year.
The bottom line: Although unexpected opportunities may develop this year, most pro-immigrant advocates believe that now is a good time for legislative caution and vigilance against proposals that could do lasting damage, and for organizing and building the base for real reform in the next Congress with a new president.
 Two identical bills in the Senate, S. 2366 and S. 2368, have a total of nine sponsors and cosponsors, but the SAVE Act is not expected to move in the Senate unless it is first acted on in the House.
 For more information about the employment eligibility verification and other provisions affecting all workers, see “Shuler-Tancredo Employment Eligibility Verification System: Poorly Designed, Dangerous for the Economy.”
 For an analysis of the Johnson bill, see “Rep. Johnson’s New Employee Verification Act: Another Version of the Shuler-Tancredo Bill.”
 A dramatic recent example of the lack of electoral salience of the immigration issue was the victory by rookie candidate Bill Foster (D) in the formerly safe Republican Chicago suburban district vacated by former Speaker of the House Dennis Hastert. Foster won by campaigning as an immigration moderate against Republican Jim Oberweis’s stridently anti-immigrant rhetoric.